R v McCosh[2018] QSCPR 8

SUPREME COURT OF QUEENSLAND

1. [1]
   Travis Charles McCosh applies pursuant to s 590AA of the Criminal Code for exclusion of evidence of things found and seized by police during a search of a house at Mount Gravatt on 2 November 2016.  He submits that the discretion arises because the evidence was illegally obtained.
2. [2]
   Mr McCosh was living at the house.  Sergeant Cumner, a uniformed police officer, was working a shift with Constable Hogan from 2 pm to 10 pm on 2 November 2016.  Sergeant Cumner and Constable Hogan were directed to the house on that day for the purposes of a “welfare check”.  In essence, this was a visit to the house to establish the welfare and good health of Mr McCosh.
3. [3]
   Sergeant Cumner gave evidence before me of the events of 2 November 2016, but no evidence was led from Constable Hogan.  That is, in the circumstances, understandable.  The accuracy of Sergeant Cumner’s evidence of what he saw and what occurred in the house is, in the main, not contentious on this application and there is no reason why Constable Hogan needed to be called to corroborate the uncontentious evidence of Sergeant Cumner.  Further, Sergeant Cumner, no doubt because of his position as the senior officer, made the decisions relevant to the exercise of powers of search under the Police Powers and Responsibilities Act 2000 (the PPRA).  Therefore, it was Sergeant Cumner’s state of mind which was relevant and Constable Hogan could say nothing about that.  
4. [4]
   Upon arrival at the house, Sergeant Cumner saw a red Holden Commodore car on the road outside.  The car’s engine was idling and it was occupied by a woman and a young child.
5. [5]
   The house is on a typical suburban block.  Sergeant Cumner could not recall whether he and Constable Hogan entered the grounds via a pedestrian path or the driveway, but he was sure that there were no locked gates.  They walked freely onto the property.  They did so to fulfil their duty to perform the welfare check.
6. [6]
   Once on the property, Sergeant Cumner and Constable Hogan walked up a flight of external stairs which led to an open sliding glass door.  Sergeant Cumner looked into the house.  Constable Hogan was at this stage standing next to Sergeant Cumner, and had the same view into the house as did Sergeant Cumner.  
7. [7]
   Sergeant Cumner could see two men sitting on a lounge, both facing a large coffee table.  Those two men were later identified as Mr McCosh and Joshua James Thompson.  On the coffee table was what Sergeant Cumner described as an “ice pipe”.  Sergeant Cumner entered the house.  Later in these reasons, I analyse Sergeant Cumner’s evidence, including as to what exactly he saw before entering the house.  It is clear that at some stage close to the time of entering the house through the sliding door, Sergeant Cumner saw a McDonald’s takeaway food bag on the coffee table and saw either Mr McCosh or Mr Thompson move the bag, seemingly to hide items on the table.

8. [8]
   Sergeant Cumner made a decision to act under s 160 of the PPRA, which authorises police to enter premises and conduct a search in certain circumstances without warrant.  The provisions of the PPRA are critical to the outcome of the application and are considered in detail later.  Purportedly in reliance upon s 160, Sergeant Cumner declared an intention to conduct an “emergent search”, as a search made in reliance upon s 160 is often called.
9. [9]
   A search was then conducted of the coffee table.   What were located and seized were:

   1. A white Samsung mobile telephone;
   2. Three clip seal plastic bags; one being empty and two containing a crystal substance;
   3. A set of digital scales; and
   4. The “ice pipe”.
10. [10]
    The contents of the two bags containing crystals were later analysed and were found to contain methylamphetamine:

    1. One bag contained 3.408 grams of substance, which, at a purity of 74.9 per cent, yielded 2.552 grams of methylamphetamine; and 
    2. The second bag contained 0.29 grams of substance, which, at a purity of 75.6 per cent, yielded 0.21 grams of methylamphetamine.

11. [11]
    Sergeant Cumner ascertained that Mr McCosh was an occupier of the house and that Mr Thompson was a visitor.  He called for further police to attend at the house.  Again, in purported reliance upon s 160 of the PPRA, Sergeant Cumner and other police undertook a search of the entire house.  
12. [12]
    In an area described as Mr McCosh’s bedroom, things were located including a number of mobile telephones.  One of these, a black iPhone, contained at least one text message which Sergeant Cumner thought was related to activity concerning illicit drugs.  That was a text communication with Mr Thompson.  Also found were an iPad, some cannabis, 10 Comforol Forte tablets (prescription medication) and seven Cephaloxin tablets (prescription medication).  The prescription medication was found in boxes which bore labels identifying persons other than McCosh as the persons to whom the medication had been dispensed.
13. [13]
    In the kitchen, there was found a ceramic bowl and a wooden bowl, each containing a very small amount of cannabis, and a glass implement used for smoking cannabis (a bong).
14. [14]
    After the search, Mr McCosh was taken to the police station, interviewed and charged.  Mr Thompson left the house.

15. [15]
    By s 161 of the PPRA, if an emergent search is conducted, the police officer who exercised the power of search under s 160 must apply to a magistrate for a post-search approval order.  That application must be made “as soon as reasonably practicable after exercising powers under s 160”.^[1]  That application was not made until 15 November 2016, some 13 days after the search.  A magistrate on that day approved the search pursuant to s 162 of the PPRA.  Sergeant Cumner gave evidence before me to the effect that 15 November was the first time that it was reasonably practicable for him to make the application.  The evidence about that is analysed later.  
16. [16]
    Mr McCosh faces a total of 11 charges arising as a result of evidence found during the search.  Four of those charges are on indictment presented in this Court.  They are:

    1. Supplying a dangerous drug;^[2]
    2. Possessing a dangerous drug in excess of 2 grams;^[3]
    3. Possessing a dangerous drug;^[4] and
    4. Receiving stolen property.^[5]
17. [17]
    Count 1 is particularised as an offer to supply Mr Thompson with methylamphetamine at a cost of $50.  It is alleged by police that Mr Thompson was at the house in order to be supplied with the drug.  The Crown’s case is that the offer to supply is evidenced by the text messages on Mr McCosh’s telephone, which is the black iPhone found in the bedroom. 
18. [18]
    Count 2 on the indictment relates to the total amount of the drugs in the two clip seal bags described as containing a crystal substance found on the coffee table.
19. [19]
    Count 3 relates to the cannabis that was found in Mr McCosh’s bedroom.
20. [20]
    Count 4 concerns an iPad and an iPhone 7, which were located in Mr McCosh’s bedroom.
21. [21]
    The other seven offences are summary offences still pending in the Magistrates Court as follows:

    1. Possessing a thing used in connection with supplying a dangerous drug.^[6]  This charge is particularised as the defendant’s iPhone found in his bedroom.
    2. Possessing utensils or pipes that had been used.^[7]  This charge relates to the glass bong with a cone piece which was located in the kitchen;
    3. Possessing utensils or pipes for use.⁸  This charge concerns the digital scales which were located on the coffee table.
    4. A further charge of possessing utensils or pipes that had been used. ^[8]  This charge relates to the ceramic bowl and the wooden bowl which were located in the kitchen.
    5. A further charge of possessing utensils or pipes that had been used. ¹⁰  This charge relates to the ice pipe which Sergeant Cumner saw from his position at the glass sliding door.
    6. Unlawful possession of controlled drugs,^[9] being the Cephaloxin tablets found in Mr McCosh’s bedroom.
    7. A further charge of unlawful possession of controlled drugs,¹² being the Comfarol Forte tablets found in Mr McCosh’s bedroom.

The issues on the present application

22. [22]
    The application relevantly is in these terms:

“I, TRAVIS CHARLES MCCOSH … make application to the Supreme Court of Queensland at Brisbane for a ruling pursuant to Section 590AA of the Criminal Code (Qld) that the evidence obtained during a search of [the house] on 2 November 2016 be ruled inadmissible.”

23. [23]
    Written and oral submissions were made on behalf of both Mr McCosh and the Crown.  Often what is sought in applications such as this is a ruling simply declaring that a search was unlawful, with the natural consequence being that the evidence seized during the search was unlawfully obtained.  Such a finding is of course important as, while in Australia evidence which is unlawfully obtained is not inadmissible, the illegality enlivens a discretion to exclude the evidence.  Where such an application is made, if the Court finds illegality, then the exercise of discretion to exclude the evidence is left to the trial judge, or another judge who determines under s 590AA whether the evidence ought to be excluded. ^[10]

24. [24]
    Alternatively an application can be made for both issues (illegality and the exercise of discretion) to be considered at once.  The present application was both conducted and defended on the basis that I was being asked to determine both issues.  The application though seeks a ruling that the evidence is “inadmissible”.  More correctly, the ruling sought should be that the evidence not be admitted in the exercise of discretion.  I will deal with the matter on the basis that is what was intended.
25. [25]
    That, though, raises another issue.  Before this Court are only the four counts on the indictment.  The other charges are before the Magistrates Court.  Any discretionary exclusion of evidence sought to be led in the Magistrates Court ought to be determined by that court.  It is difficult to see, for instance, how some of the evidence allegedly illegally obtained during the search could be admissible upon a trial of the four counts on the indictment.  How, for instance, is it said that the possession of 10 Comfarol Forte tablets¹⁴ is evidence which is probative of guilt of Mr McCosh of any of the counts on the indictment?  However, the parties to the present application have assumed that all the evidence challenged is admissible in proof of the counts on the indictment.  I have proceeded on that basis.
26. [26]
    The PPRA contains various provisions enabling the search of premises.  All jurisdictions in Australia have statutory provisions concerning the issue of search warrants and Queensland is no exception.  Sections 150, 151 and 157 concern the application for search warrants, the issue of search warrants and the powers to be exercised under a search warrant.  Those provisions are, relevantly, as follows.

“150 Search warrant application

1. (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. to obtain evidence that may be confiscation related evidence; or
   3. to find a vehicle that is or is to be impounded or immobilised under chapter 4 or 22; or
   4. to find control order property; or
   5. if the place is premises at which a senior police officer reasonably believes 1 or more disorderly activities have taken place and are likely to take place again—to find prohibited items at the place.
2. (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. (a)
   be sworn and state the grounds on which the warrant is sought;

     …

(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.”

“151 Issue of search warrant

The issuer may issue a search warrant only if satisfied—

1. (a)
   there are reasonable grounds for suspecting the evidence or property mentioned in section 150(1)(a), (b), (c) or (d) is—

   1. at the place; or
   2. likely to be taken to the place within the next 72 hours; or
2. (b)
   there are reasonable grounds for believing the prohibited items mentioned in section 150(1)(e) are—

   1. at the place; or
   2. likely to be taken to the place within the next 72 hours.”

“157  Powers under search warrant

1. (1)
   A police officer may lawfully exercise the following powers under a search warrant (search warrant powers)—

   1. power to enter the place stated in the warrant (the relevant place) and to stay on it for the time reasonably necessary to exercise powers authorised under the warrant and this section;
   2. power to pass over, through, along or under another place to enter the relevant place;
   3. power to search the relevant place for anything sought under the warrant;
   4. power to open anything in the relevant place that is locked;
   5. power to detain anyone at the relevant place for the time reasonably necessary to find out if the person has anything sought under the warrant;
   6. if the warrant relates to an offence and the police officer reasonably suspects a person on the relevant place has been involved in the commission of the offence, power to detain the person for the time taken to search the place;
   7. power to dig up land;
   8. power to seize a thing found at the relevant place, or on a person found at the relevant place, that the police officer reasonably suspects may be warrant evidence or property to which the warrant relates;
   9. power to muster, hold and inspect any animal the police officer reasonably suspects may provide warrant evidence or property to which the warrant relates;
   10. power to photograph anything the police officer reasonably suspects may provide warrant evidence or property to which the warrant relates, whether or not the thing is seized under the warrant;
   11. power to remove wall or ceiling linings or floors of a building, or panels of a vehicle, to search for warrant evidence or property;
   12. if the police officer is searching for stock—power to use any equipment, cut out camps, stockyards, dips, dams, ramps, troughs and other facilities on the place being searched that are reasonably needed to be used in the management of stock.
2. (2)
   Also, a police officer has the following powers if authorised under a search warrant (also search warrant powers)—

   1. power to search anyone found at the relevant place for anything sought under the warrant that can be concealed on the person;
   2. power to do whichever of the following is authorised—

   1. to search anyone or anything in or on or about to board, or be put in or on, a transport vehicle;
   2. to take a vehicle to, and search for evidence of the commission of an offence that may be concealed in a vehicle at, a place with appropriate facilities for searching the vehicle.”

[27] Part 2 of Chapter 7 of the PPRA is headed “Search of place to prevent loss of evidence”.  Contained in Part 2 are a series of provisions clearly designed to identify limited circumstances in which a police officer may lawfully enter and search premises without a warrant.  Relevantly, ss 159, 160, 161 and 162 are as follows:

“159 Application of pt 2

This part applies only in relation to the following offences (a part 2 offence) –

1. (a)
   an indictable offence;
2. (b)
   an offence involving gaming or betting;
3. (c)
   an offence against any of the following Acts –

   • Confiscation Act
   • Explosives Act 1999
   • Nature Conservation Act 1992
   • Weapons Act 1990;
4. (d)
   an offence against the Liquor Act 1992, section 168B or section 168C.

160Search to prevent loss of evidence

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

   1. 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
   2. the evidence may be concealed or destroyed unless the place is immediately entered and searched.
2. (2)
   This section also applies if a police officer reasonably suspects a part 2 offence has been, is being, or may be committed in, on or in relation to a transport vehicle and involves the safety of the vehicle or anyone who may be in or on it.
3. (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.

161Post-search approval

1. (1)
   As soon as reasonably practicable after exercising powers under section 160, the police officer must apply to a magistrate in writing for an order approving the search (post-search approval order).
2. (2)
   The application must be sworn and state the grounds on which it is sought.
3. (3)
   The applicant need not appear at the consideration of the        application, unless the magistrate otherwise requires.
4. (4)
   The magistrate may refuse to consider the application until the police officer gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires…”

“162 Making of post-search approval order

1. (1)
   The magistrate may make a post-search approval order only if satisfied—

1. (a)
   in the  circumstances existing before the search—

   1. the police officer, before exercising the powers, had a reasonable suspicion for exercising the powers; and
   2. there was a reasonable likelihood that the evidence would be concealed or destroyed or may have caused injury to a person; or

2. (b)
   having regard to the nature of the evidence found during the search it is in the public interest to make the order.

28. [28]
    Section 159 identifies, relevantly here, only indictable offences as “Part 2 offences”.  It follows then from s 160(1)(a) that one of the matters of suspicion that the police officer must hold is a suspicion of commission of an indictable offence.  During the search, evidence was seized which is said to be probative of various summary offences.  That does not matter here.  Under the Drugs Misuse Act 1986, various indictable offences are created.  If there was a reasonable suspicion that an indictable drug offence (such as possession of dangerous drugs) had been committed, then, subject to compliance with other requirements, the search would be authorised and evidence of the commission of summary offences would be lawfully seized.  As already observed, the parties seemed to have assumed that all the evidence seized is relevant to the counts on the indictment, obviously, indictable offences.
29. [29]
    In some ways, ss 160, 161 and 162 are odd.  Section 160 clearly gives power to police officers to search without warrant in certain circumstances.  The procedure in ss 161 and 162 is designed to ensure that the exercise of power under s 160 is subject to some scrutiny by a judicial officer, albeit one who is exercising executive, not judicial, powers.  However, ss 161 and 162 are silent as to the effect of a post-search approval order.  It has been held that the making of a post-search approval order does not render an unlawful search lawful. ^[11]  
30. [30]
    The discretion to exclude evidence is expressly preserved by s 10 of the PPRA.  In R v P & Anor,^[12] Applegarth J held that non-compliance with s 161 enlivened the discretion to exclude evidence, even where the prerequisites to the exercise of the power to search under s 160 were fulfilled.  I accept and follow his Honour’s decision.  The discretion to exclude evidence is enlivened where there is some unlawfulness which raises the necessity to consider the balance between the public interest in the detection of crime and the public interest in the police acting lawfully.^[13]  That issue arises where there has been a failure to comply with s 161, notwithstanding there may have been justification in exercising the power of search without warrant under s 160.
31. [31]
    There is no doubt that the presence of the two police officers at the entrance of the house was lawful.  The common law recognises the implied consent of an occupier of a residential property to persons entering the land and proceeding to the entrance of the dwelling, at least where there are no locked gates or other barriers.^[14]  The PPRA probably also authorised the presence of the two police officers at the door.^[15]  Once it is accepted that the police were lawfully at the front door of the premises, the issues which arise are:

    1. Was the initial entry to the house and the search of the coffee table area unlawful?
    2. Was there a breach of the requirements of s 161?
    3. Was the search of the remainder of the house unlawful?
    4. If the answer to any of the first three questions is affirmative, should any evidence be excluded in the exercise of discretion?

Was the initial entry to the house and the search of the coffee table area unlawful?

32. [32]
    Evidence of what Sergeant Cumner saw from the entrance to the house is not evidence unlawfully obtained.  He was lawfully at the doorway and from that position he saw things.  Evidence of what he saw, and his state of mind, are critical to the exercise of the power under s 160 of the PPRA.  However, assessment of Sergeant Cumner’s evidence is made difficult by his tendency to give answers that were non-responsive.  Many of his answers were convoluted by statements seeking to justify the position that he took in deciding to search the house.
33. [33]
    The passage of Sergeant Cumner’s evidence relevant to his decision to enter the house is as follows:

“MS O'CONNOR:^[16]  So did you go up those stairs?---Yes, I did, up onto the small landing and the glass sliding door to the – the dwelling was – was wide open. 

And what did you do next upon getting to the landing?---So I went to the opening of the – of the dwelling, which is the open glass sliding door, and I’ve knocked on the door and looked inside, which is quite open and easily to be able to be seen in, and that’s when I’ve seen the two occupants inside the dwelling in clear sight.  

Where were they in relation to where you were standing?---So as I’m coming through – well, leaning through the front glass sliding door that was open, there’s a large living area, and there was a couch to my immediate right just over here, and they were sitting in the corner of that couch, in the corner of that room.

And did you make any observations at that time?---Yes, I did.  So the two males were sitting in the corner of the living room, my right over here, and I could see a glass pipe, and they had some McDonald’s packaging in front of them, and on coming into the room and knocking and introducing myself, there was a movement of – of the McDonald’s packets, but the glass pipe was in clear sight at that stage.

And was anything said by you as you came into the room?---So I – I announced – obviously, I’m a police officer - - - 

HIS HONOUR:   Were you in uniform?---Yes.  Yes, your Honour, as was my partner performing uniform duties that day.  So I’ve come in and announced myself, and, at that point, it became very clear and evident to me that there was drug paraphernalia in the room.  At that point, we then – I then continued to declare an emergent search in the dwelling and identify who the people were in the room.

Was there any – you found two people in the room, and there was one person in the car outside - - -?---Yes. 

- - - with a child, I think;  is that right?---That’s correct, your Honour. 

Right.  No evidence of anybody else in the house, though?---No.  So since we declared an emergent search, for safety reasons, we go and render the house safe to see if anyone else is in there or if there’s any other dangerous items.  There was no one else in the house. 

Thank you.  

MS O'CONNOR:   And your reference to an emergent search, is that a particular provision of the Police Powers and Responsibilities Act you’re referencing?---Yeah.  So section 160 of the Police Powers and Responsibilities Act gives us provision to perform a search without a warrant if there’s paro – if there is a prescribed circumstance. 

And what was the basis for your declaration of an emergent search at that time?---So originally, I saw the ice pi – the pipe, and I’ve then entered the dwelling to – to have further observations for what’s going on, and also to understand more about what’s happening in the dwelling generally, and that’s when I also have then seen a set of scales, some white – some white substance on the coffee table immediately in front of them.  So at that point, I was fair – I was convinced - - -  HIS HONOUR:   Could you see - - - 

WITNESS:   I had reasonable - - - 

HIS HONOUR:   Could you see that from where you were standing - - -?---So the distance - - - 

- - - on the outside of the glass door?---So if I could put some relevance to the distance, your worship, the glass door and where the two gentlemen were sitting was where the clerk is here.  And the coffee table’s right in front of them.  Due to the nature of how I found them, your Honour, and to try to explain it in a – in a statement later, I took the opportunity to take a picture of exactly how I found him at that time, because I thought that would explain at a later date in much greater detail the picture as to how I found them at that point of time.”^[17]

34. [34]
    Later in evidence in chief:

“MS O'CONNOR:  So, Sergeant, at the point where you declared the emergent search, what was it that you observed that led you to declare the emergent search?---Yeah.  So the – the – obviously the clear presence of drug paraphernalia, drugs – dangerous drugs.  So by me leaving and going and getting a search warrant, it’s just not practicable.  You know, that evidence could be lost.  So that is the reason why we invoke an emergent search at that time to – to ensure that no evidence is going to be lost that we’ve found by chance discovery. 

   And of what offence or offences did you consider that evi

- - -?---Possess dangerous drugs.  I also – there was a set of scales there as well.  You know, as my reasonable suspicion’s growing as to what’s occurring there – two males, a car idling out the front, scales, quantities of drugs – I also had a reasonable suspicion there may have been a drug supply occurring at that time, which I required further investigations to substantiate. 

Did you then, having declared the emergent search and detaining those two persons, carry out a search of the rest of the house?---I did.”²²

35. [35]
    Then in cross-examination:

“MR FUNCH:  Officer, when you were – when you attended at the dwelling, is it the case that you observed through a glass door paraphernalia and what appeared to be drugs on a table?---Well, the door was open - - - 

Okay?--- - - - so – so I was actually looking through an open door to – what I observed.  

Okay, and the photos that you say depict your vantage point:  were they taken from inside the house or outside the house?---They were taken from inside the – inside the dwelling.

Okay, so that’s not where you initially observed the paraphernalia and the drugs?---So as I’m coming through the door [indistinct] door – to my right, I could see the ice pipe and some McDonald’s packets.  When I’ve gone into the living room in full or walked further into the living room, well, then the – the rest of the items behind the McDonald’s packet then became - - - 

HIS HONOUR:   But you’ve seen the ice pipe from effectively outside or at least the threshold of the door, haven’t you?---Yes.  Yes.  

MR FUNCH:   Okay, and how far away was the ice pipe from your vantage point outside the door?---The same distance as myself to the – the clerk of the court.  

Okay - - -?---Or this gentleman here.  

Would you agree about four metres?---I’d agree it’s about that distance there. 

All right.  Thank you.  And was the ice pipe easily observable from that vantage point?---Yes.”^[18]

[36]  Then later in cross-examination:

“Just in respect of the search that you undertook of the dwelling, is it the case that you declared an emergent search because of concern that the subject matter might be concealed or destroyed if you did not take that step?---Correct. 

Okay, and what was the source of your concern that it could be concealed or destroyed if you didn’t conduct an emergent search?---So I’ve identified a number of items in front of me that could be removed [indistinct] destroyed, but more often than – moreover than not, I now have the belief that there are other items potentially associated to these - - -  Okay?--- - - - these items elsewhere in the house. 

Let me ask you in this way:  was the source of your concern that they might be concealed or destroyed the fact that there were two young men sitting in front of those objects?---Yes.  

Okay?---Well, yes, it was a given, yes.”^[19]

37. [37]
    In his statement of 6 February 2017, Sergeant Cumner said:

“9.  I walked to the open sliding glass door, knocked and announced my presence.

10. As I did this I became aware that two males were seated on a lounge to my immediate right.
11. I then observed the males had items in front of them on a coffee table that they were quickly attempting to conceal with a McDonalds packet.  At this time I observed an Ice pipe also on the table.
12. I then walked inside the living room of the dwelling and formally introduced myself and declared to both males that I was declaring an emergent search of the dwelling and that they were both now detained for the purpose of that search.”

38. [38]
    Then, in his statement of 2 March 2018, Sergeant Cumner said:

“3. My grounds for declaring the emergent search were based on my observations of dangerous drugs and drug implements, namely a quantity of white crystal substance, a set of electronic scales and a glass pipe.

4. I saw these items on a coffee table in the lounge room, directly in front of McCOSH and THOMSON, as I knocked on the open front sliding door of the residence. 
5. Based on my reasonable suspicion that 1) a drug supply transaction was occurring between MCCOSH and THOMPSON and 2) that it was likely that other items relating to the possession and supply of dangerous drugs would be located in the dwelling and 3) that an immediate search of the dwelling was necessary to prevent the loss of any evidence relating to my suspicions I declared the emergent search of the dwelling under the provisions of Section 160 of the Police Powers and Responsibilities Act 2000.”

39. [39]
    Then, returning to his evidence about these statements, he said in cross-examination:

“Right.  Now, if you go to paragraph 5 of your statement of the 2^nd of

March, which I think is the second of the two statements.  Sorry?---Second

• - - 

The second of the two statements.  So it should be a six-paragraph statement - - -?---Yes, that’s correct.  

• - - signed on the 2^nd of March?---Yeah.

Okay.  Now, if you look at paragraph 4 and 5 - - -?---Yes.

• - - what’s actually occurred here is you’ve arrived at the door, you’ve looked in and you’ve formed the view that you’re seeing a drug deal actually occurring there?---By that point, I’ve seen a glass pipe then as I’ve gone in further, then it became a bit more apparent - - - 

All right?--- - - - what was occurring.  

You’ve seen - - -?---Yes.

All right.  Now, you then say at paragraph 5:

Based on my reasonable suspicion that a drug supply transaction was occurring, and it was likely that other items relating to the possession and supply of drugs would be located in the dwelling and an immediate search of the dwelling was necessary to prevent the loss – 

You see that?  So that’s your three sworn bases of suspicion?---Immediate - - - That’s right?--- - - - suspicion, yes.”^[20]

40. [40]
    At least in parts of his evidence, Sergeant Cumner seemed to say that his reasonable suspicion of the facts prescribed by s 160 of the PPRA as preconditions to the exercise of the power of entry and search included the presence of the clip seal bags and the scales, etc.  However, it is obvious that he did not see those things until he had entered the premises; in other words, after he had acted in reliance upon s 160.  However, it was not until he has seen those things that he detained Mr McCosh and Mr Thompson and declared an emergent search.
41. [41]
    I did not find Sergeant Cumner a particularly reliable witness.  He was more concerned with giving answers which he thought would justify his position than with giving answers which were accurate.  It is fairly obvious, though, what actually happened and what was going through his mind at the time he entered the house.
42. [42]
    By the time Sergeant Cumner entered the house he had seen the red Commodore idling outside, then saw the “ice pipe” from where he was standing at the door, and concluded from that information that Thompson had been a passenger of the Commodore and that some drug related transaction was occurring.  He swore to that belief in his statement of 2 March 2018.  It doesn’t matter that possession of the ice pipe by either Mr McCosh or Mr Thompson would only constitute a summary offence.  Sergeant Cumner clearly suspected the commission of offences of either possession or supply of dangerous drugs, both indictable offences.
43. [43]
    Provided that his conclusion was at least a “reasonable suspicion” of the fact that a supply of dangerous drugs was then occurring, quite apart from s 160 Sergeant Cumner had the right to enter the house and prevent the commission of the offence.  Section 52 of the PPRA provides as follows:

“52 Prevention of offences – general

1. (1)
   This section applies if a police officer reasonably suspects an offence has been committed, is being committed, or is about to be committed.
2. (2)
   It is lawful for a police officer to take the steps the police officer considers reasonably necessary to prevent the commission, continuation or repetition of an offence.

Example of preventing the commission of an offence –

A police officer who reasonably suspects the way a person in the vicinity of a prisoner is acting threatens or is likely to threaten the security of the prisoner or the security or good order of the place where the prisoner is detained may require the person to leave the vicinity of the prisoner or the place of detention.

Examples of continuation of an offence – 

1. A police officer may direct a person who is obstructing an ambulance officer acting under the authority of the Ambulance Service Act 1991 to leave the place where the person if and, if the person fails to leave, may use reasonably necessary force to remove the person.
2. A police officer may remove or deface an obscene or indecent placard, picture, writing or advertisement attached to a place or thing if it contravenes an Act because it is visible to members of the public.”

44. [44]
    Section 52 of the PPRA does not expressly give police officers the power to enter premises, but at common law a police officer may enter premises to prevent the commission of at least some offences and s 9 preserves the common law powers of

constables.^[21]  

45. [45]
    Both s 52 and s 160 give powers upon formation by the police officer of a “reasonable suspicion”.  The notion of “reasonable suspicion” was considered by the High Court in George v Rockett²⁷ in the context of a statute which provided for the issue of a search warrant where the issuing justice had reasonable grounds for suspicion and belief of certain prescribed things.  The Court approved statements in Hussein v Chong Fook Kam^[22] and Queensland Bacon Pty Ltd v Rees^[23] as follows:

“Suspicion, as Lord Devlin said in Hussien v. Chong Fook Kam, ‘in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove”’.  The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.  In Queensland Bacon Pty. Ltd. v. Rees, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, ‘was unable to pay [its] debts as they became due’ as that phrase was used in s. 95(4) of the Bankruptcy Act 1924 (Cth).  Kitto J. said:

‘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.  Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.  The notion which “reason to suspect” expresses in sub-s. (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or feat that the situation of the payer is in actual fact that which the sub-section describes – a mistrust of the payer’s ability to pay his debts as they become due and

of the effect which acceptance of the payment would have as between the payee and the other creditors.’

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof.  Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.”^[24]

46. [46]
    In Manley v Tucs,^[25] Johnston J sitting in the Full Court of the Supreme Court of South Australia, accepted as correct that “reasonable suspicion is one based on facts that would create a reasonable suspicion in the mind of a reasonable man”.^[26]
47. [47]
    Here, Sergeant Cumner held a reasonable suspicion that a drug transaction was occurring.  Further, the evidence which he saw before entry was an “ice pipe” which could easily be “concealed or destroyed”.^[27]  He formed the suspicion before he entered the house and saw the clip seal bags and the scales that evidence of drug offences was in the house and that the evidence may be concealed or destroyed.  That belief was reasonable.  He was therefore authorised by s 160 and/or s 52 of the PPRA to enter the house.  Upon entry, he then saw the further items, such as the scales, and saw that steps were being taken to conceal those things.  That then enlivened the power to search at least the vicinity of the coffee table area without warrant.

Was there a breach of the requirements of s 161?

48. [48]
    Section 161 of the PPRA required an application to be made for a post-search approval order “as soon as reasonably practicable after exercising powers under s 160”.^[28]  In order to ascertain reasonable practicability of doing a thing, it is necessary to consider the thing to be done.
49. [49]
    The application for the post-search approval was tendered.  It is a three-page pro forma document.  The first page requires insertion of:

    1. details of the applicant’s name, rank, registered number and police station;
    2. the date and time of the search;
    3. the search address;
    4. the things which were sought by the search;
    5. the type of offence being investigated;
    6. a list of the things seized; and
    7. the name, address and date of birth of any person detained during the search.
50. [50]
    An exhibits register had been kept during the search^[29] so Sergeant Cumner always had available to him a list of the things seized.  All the other information was readily available to him immediately after the search.
51. [51]
    The form of application then requires a description of three things:

    1. “Information about any proceeding started against a person, before or because of the search, for an offence in relation to which the search was conducted”;
    2. “If an order under the Act, for the retention, disposal, return or destruction of anything seized is sought, why the order should be made”;
    3. “Grounds for the approval”.
52. [52]
    Sergeant Cumner did not complete the two parts of the form relating to retention etc. of things seized or the grounds for the approval.  Instead he provided in the part of the form headed “Information about any proceeding started against a person …” a description of events surrounding the entry and search, including identifying the charges laid against Mr McCosh and an explanation for the delay in making the application. 

Nothing turns on the fact that Sergeant Cumner did not strictly follow the form.

53. [53]
    As already observed, the first part of the pro forma application simply involved the completion of readily available information.  The only real drafting that was required was of the description of events.  That description occupies a little over one page. 

Sergeant Cumner’s evidence that the application took one to two hours to prepare^[30] is rejected.  Mr McCosh was processed through the watchhouse on the evening of the search.  It is police practice to prepare a brief for the police prosecutor who will appear in court on the matter the next day.  That brief is in a form known as a QP9.  Sergeant Cumner said in evidence that a QP9 was prepared on the evening of the arrest.  Form QP9s are very common and it is well known what type of information is contained in them.  While the QP9 was not tendered, it is obvious that the information necessary for the preparation of the QP9 is the same type of information which Sergeant Cumner eventually inserted in the application for the post-search approval.

54. [54]
    Sergeant Cumner then gave evidence to the effect that:

    1. On the evening of the day of the search there was not time to complete the application;^[31]
    2. He then went on leave for five days;^[32]
    3. He was absent from work through illness for the two days then following;^[33]
    4. He returned to duties on 10 November 2016 but was rostered to transport duties on 10 November 2016 and shift supervisor duties on 11 November 2016 and, he said, given the nature of those duties there was no time to prepare the application;^[34]
    5. He then went on leave for three days;^[35]
    6. Upon return to duties on 15 November 2016, he completed the application, some preparation of which he did during his three days of leave, swore it and lodged it with the Magistrates Court.^[36]
55. [55]
    Sergeant Cumner has exaggerated the effort needed to prepare the application and sought to minimise the opportunities he had to prepare it so as to justify his neglect in taking some 13 days to complete a pro forma document where all the information necessary to complete the document was readily available to him.
56. [56]
    During Sergeant Cumner’s cross-examination, this exchange occurred:

“HIS HONOUR:  No, he’s talking about – counsel’s talking about you had an opportunity to complete it?---No, there was no opportunity at that time to complete that document.

Isn’t it the case, Sergeant, that you were doing a whole stack of paperwork on this evening, and you prioritised the QP9 and other administrative things over the post-search application?---Yes.  That’s correct.

That’s right, is it?---That’s correct, yes.

MR FUNCH:  Thank you, your Honour.”^[37]

57. [57]
    In context, my reference to “this evening” was a reference to the evening of 2 November 2016.
58. [58]
    I find that it was reasonable and practicable for Sergeant Cumner to prepare the application on the day of the arrest and had that occurred it could have been lodged on  3 November.  The application has clearly not been made “as soon as reasonably practicable after [the search]”.^[38]

Was the search of the remainder of the house unlawful?

59. [59]
    Sergeant Cumner, at some point, formed the view that he had the power to conduct an emergent search.  As previously explained, some information was available to him from his view from the door, and further information became available to him as he approached the coffee table and saw the digital scales and clip seal bags.  I have found that he entered the house lawfully and certainly by the time he was at the coffee table he reasonably held the requisite suspicion to justify a search of the coffee table area.  However, he then, without obtaining a search warrant, searched the rest of the house and found potentially incriminating evidence in the kitchen and bedroom.  There were two reasons why he considered himself justified in searching the whole house:

    1. He suspected that there might be further drug offence related evidence in the house.^[39]  That suspicion was clearly reasonably held and as it turned out more evidence was found;
    2. That once he had entered the house in reliance upon the emergent search powers in s 160 of the PPRA, he was authorised to search the entire house.⁴⁶
60. [60]
    Section 160 authorises the relevant police officer to “enter the place and exercise search warrant powers”.^[40]  The term “search warrant powers” is defined by s 157 of the PPRA and is set out at paragraph [26] of these reasons.  The powers include entry and search of a “place”.
61. [61]
    The term “place” is defined as:

“(a) generally includes – 

1. (i)
   premises; and
2. (ii)
   vacant land; and
3. (iii)
   a vehicle; and
4. (iv)
   a place in Queensland waters; and
5. (v)
   a place held under 2 or more titles or by 2 or more owners…”^[41]

62. [62]
    “Premises” is then defined as:

“(a) a building or structure, or part of a building or structure, of any type; and

2. (b)
   a group of buildings or structures, or part of a group of buildings or structures, of any type; and
3. (c)
   the land or water where a building or structure, or a group of buildings or structures, is situated; and
4. (d)
   a vehicle and a caravan; and
5. (e)
   a tent or case; and
6. (f)
   premises held under 2 or more titles or owners.”^[42]

63. [63]
    The Crown submits that when reading s 160 with the definition of “place” and

“premises”, the “place” is, relevantly here, the house.  The Crown submits that once Sergeant Cumner formed the reasonable suspicion that there might be evidence in the house and that evidence might be concealed or destroyed if the house is not “immediately entered and searched”, Sergeant Cumner had authority to search the house; that is the whole house.

64. [64]
    That submission should be accepted in part.  Upon forming the requisite suspicion,

Sergeant Cumner was authorised to enter the house (the “relevant place”) and search.  However, the real question is whether, entry having been gained, the search can continue without warrant if the danger of concealment or destruction of evidence has passed.  Here, once the coffee table area was searched, Sergeant Cumner could have arrested Mr McCosh and removed him to the watchhouse.  Sergeant Cumner conceded as much.^[43]  Mr Thompson could have been released and would no doubt have left the house.  That is what he did once he was in fact undetained.⁵¹

65. [65]
    During cross-examination by Mr Funch, I asked some questions of Sergeant Cumner and this exchange occurred:

“So if Mr Thompson had left and you had arrested Mr McCosh, what danger is there to the – to any other evidence that might’ve been in the case?---Sorry, your Worship, can you state that question again?

What – you walk in - - -?---Yes.

- - - and you’re effectively – you form the view – a reasonable suspicion that you’re seeing a drug deal.  So you’re seeing a crime actually occurring?--Yes.

All right.  You had the opportunity there to arrest Mr McCosh?---Yes.

Well, he’s obviously not going to be destroying evidence if he’s in police custody, is he?---No, that’s correct.

Right.  And Mr Thompson took off as soon as you undetained him, and there’s nobody in the house.  So why is the evidence of what’s in the bedroom going to be destroyed?  By whom?---So your Honour, I had a vehicle that was still parked out the front of the house at this time that was idling with an unknown person which turned - - -

Why couldn’t you have just put a police officer at the front door?--- I didn’t have an extra police officer at the front door at that time.  There was my - - -

There was two of you.  Why couldn’t one of you stayed at the front door and the other one gone off to get a search warrant? And - - -?---Mr Mc - - -

And then if people were coming into the house, perhaps there was then a basis for an emergent search?---So the power that I used at the time, your Honour, I believed was the – the best available to me to collect whatever evidence associated to what was occurring there that would’ve been found in the house that provided me the ability to investigate it in its fullest, to be as fair - - -

All right.  So did you take - - -?---So it was a choice I made which I - - -

So you take the view – the view you took, was it, was that because you saw two people at the coffee table, and there was some evidence that they were – they might destroy the evidence at the coffee table, that justified an emergent search of the whole house?---That and I did not know what else was in the house that could be associated - - -”^[44]

66. [66]
    The suggestion by Sergeant Cumner that the woman in the Commodore would enter the house and destroy or conceal evidence is fanciful.  Police presence would surely deter her.  When I asked him why he could not simply position a police officer at the front of the house while a warrant was being obtained and consider exercising emergent search powers if someone tried to enter, he chose not to make the obvious concession that such a course was open but instead he gave a non-responsive answer.  It is obvious that such a course was open.
67. [67]
    Where a search is conducted pursuant to a warrant, it is the warrant to which regard is hard to determine whether the search is lawful.  As Holland J said in Trimboli v Onley (No 3):^[45]

“…whilst it is the statute that authorizes the warrant, it is the warrant that authorizes the officer to whom it is granted.”^[46]

68. [68]
    In other words, the statute authorises the issue of the warrant but the warrant authorises the search.  Under the procedures in Part 2 of Chapter 7 of the PPRA, no warrant is issued.  The search is authorised directly by the statute and the lawfulness or otherwise of the search falls for determination upon construction of the PPRA.
69. [69]
    The question arises then as to how s 160 should be construed.  One construction, which is the one pressed by the Crown, is that the powers to “enter and search” are conjunctive, so once the relevant suspicion is held there is a power to enter and search and these powers subsist until the place in its entirety (here, the entire house) has been duly searched.  An alternative construction results in more restricted powers.  On this alternative construction, there is a power to enter and a power to search, and either can only be exercised while the preconditions, including risk of destruction or concealment, exist.
70. [70]
    In George v Rockett,^[47] the High Court said:

“A search warrant thus authorizes an invasion of premises without the consent of persons in lawful possession or occupation thereof.  The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue.  In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property.  Search warrants facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law.  In enacting s. 679, the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property.  The common law has long been jealous of the prima facie immunity from seizure of papers and possessions: see Holdsworth, A History of English Law, vol. 10(1938), pp. 668-672.  Except in the case of a warrant issued for the purpose of searching a place for stolen goods, the common law refused to countenance the issue of search warrants at all and refused to permit a constable or government official to enter private property without the permission of the occupier: Leach v. Money; Entick v. Carrington.  Historically, the justification for these limitations on the power of entry and search was based on the rights of private property: Entick.  In modern times, the justification has shifted increasingly to the protection of privacy: see Feldman, The Law Relating to Entry, Search and Seizure (1986), pp. 1-2.

State and Commonwealth statutes have made many exceptions to the common law position, and s. 679 is a far-reaching one.  Nevertheless, 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.  It will be convenient to consider the relevant conditions prescribed by s. 679 under three headings: the justice’s junction, the material to ground the issue of a warrant and the facts to be established.”^[48]

71. [71]
    In Coco v The Queen,^[49] a case about the installation of covert listening devices, the High Court observed:

“The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them.  The courts should not impute to the legislature an intention to interfere with fundamental rights.  Such an intention must be clearly manifested by unmistakable and unambiguous language.  General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.”^[50]

72. [72]
    This principle of construction, often called the “principle of legality” has been applied consistently in the construction of statutes with authorised searches without the consent of the citizen whose property is being searched.^[51]
73. [73]
    Section 160(3) is the subsection which actually authorises the search.  The authority is to “enter the place and exercise search warrant powers”; in context here, to enter the house and search.  As already observed, the power in s 160(3) is limited to circumstances where the police officer exercising the power holds the reasonable suspicion prescribed by s 160(1).
74. [74]
    Of the two suspicions prescribed by s 160, the most critical will often be that prescribed by s 160(1)(b).  The suspicion is that “the evidence may be concealed or destroyed unless the place is immediately entered and searched.”  The purpose of s 160 is obvious.  Section 157 authorises searches where a warrant has been issued.  Section 160 recognises that there will be circumstances where it is impracticable to obtain a search warrant and achieve the proper purposes of the search.  In other words, the evidence will be “concealed or destroyed” in the time it takes to obtain the warrant.  The word “immediately” as it appears in s 160(1)(b) applies to both the word “entered” and the word “searched” so the requirement is a reasonable belief that “the evidence may be concealed or destroyed unless the place is immediately entered or immediately searched”.  The power in s 160(3) to enter and search is exercisable only when the relevant danger exists.  So, it was necessary for Sergeant Cumner and Constable Hogan

to “immediately enter” the house but it was not necessary to immediately search beyond the coffee table, because the relevant risk had passed.  This was the approach taken by Boddice J in R v Milos.^[52]  Such an approach accords with my view of the proper construction of s 160 of the PPRA.

75. [75]
    I therefore find that the search of the house beyond the area of the coffee table was not authorised by the PPRA and the evidence found during that search was illegally obtained.

Should evidence be excluded in the exercise of discretion?

76. [76]
    Barwick CJ in R v Ireland^[53] identified the discretion to exclude evidence unlawfully obtained.  Up to that point the existence of such a discretion had been doubted.^[54]  The discretion was said to be exercised by balancing “the public interests in the conviction of those who commit criminal offences” with “the public interest in the protection of the individual from unlawful and unfair treatment”.^[55]
77. [77]
    Bunning v Cross^[56] was then decided, which approved Ireland and in which Stephen and Aickin JJ outlined various considerations relevant to the exercise of the discretion.  In  R v Milos,^[57] Morrison JA summarised those factors as follows:

“[93] Stephen and Aickin JJ went on to identify the criteria upon which the discretion was to be exercised, noting that it could not be done in the abstract but only by reference to the case in hand.^[58]  In that regard the following criteria were identified:

1. (a)
   unfairness to the accused does not enter into the equation; evidence obtained by means of an unlawful search can be used as long as the search is conducted in a way that provides all proper safeguards against the evidence being improperly placed in the accused’s possession;
2. (b)
   whether the safeguards in place to protect the individual have been deliberately disregards, or disregarded in a wholesale fashion;
3. (c)
   whether the non-compliance with the statutory safeguards was isolated or merely accidental, involving no overt defiance of the will of the legislature, or calculated disregard of the common law.
4. (d)
   whether the unlawfulness was other than the result of a mistaken belief on the part of the police officers, and not a question of deliberate disregard of the law.  The real evil to be guarded against is a deliberate or reckless disregard of the law by those whose duty is to enforce it;
5. (e)
   whether the unlawfulness of the conduct affects the cogency of the evidence so obtained; where the unlawfulness arises from mistake, and is neither deliberate nor reckless, cogency is one of the factors to which regard should be had; if other equally cogent evidence, untainted by any lawfulness, is available at the trial, the case of admission of evidence unlawfully obtained will be weaker;
6. (f)
   the ease with which the law might have been complied with in procuring the evidence in question; in this respect a deliberate cutting of corners would tend against the admissibility of the evidence;
7. (g)
   the nature of the offence charged; and
8. (h)
   the legislative intent in relation to the safeguards in place.”^[59]

78. [78]
    There have been many cases which have applied the Bunning v Cross principles to cases of unauthorised search.  These include cases concerning emergent searches under s 160 of the PPRA.^[60]
79. [79]
    In the end, all those cases are just examples of the exercise of discretion applying the Ireland/Bunning v Cross principles.  
80. [80]
    Different considerations apply to the evidence obtained from the search of the coffee table area, which was a lawful search, and the evidence obtained from the search of the rest of the house, which was not authorised.  The only basis to consider exclusion of the evidence from the search of the coffee table area is the failure to apply for a post-search approval in a timely way.
81. [81]
    Ms O'Brien for the Crown submitted that any unlawfulness ought not lead to the exclusion of any evidence.  She submitted:

“5.3.1. A failure to make the post-search approval application as soon as reasonably practicable does not affect the Applicant in a direct sense or the cogency of the evidence obtained, as it is an administrative procedure;

2. Sergeant Cumner acted in good faith and without reckless disregard of the law, believing that he was making the application as soon as reasonably practicable whilst being on days off and attending to other operational duties on two of the days;
3. The other requirements for a lawful search were met;
4. The offences are serious, the possession of methylamphetamine in excess of 2 grams offence which includes an allegation of commerciality carries a maximum penalty of 25 years imprisonment;
5. The evidence of the drugs and associated items, as well as the admissions made during the search is important evidence which forms the basis of the charges;
6. There is a significant social cost to excluding such evidence;
7. There is no evidence to suggest that there is a systemic error or policy failure by the police service in complying with the requirement that an application for a post-search approval order must be applied for as soon as practicable after the search.”^[61]

82. [82]
    Mr Funch for the applicant submitted that the evidence should be excluded primarily because:

    1. There was a long delay in the making of the application for the post-search approval which was not satisfactorily explained;
    2. The search of the whole house was a flagrant overstepping of the limitations of the right to search.
83. [83]
    As I have already found, Sergeant Cumner really made no effort to comply properly with s 161.  He did in fact act in reckless disregard of the provisions of s 161.  He simply prioritised other duties.  The search of the coffee table area was lawful at the time it was conducted.  That cannot be said about the search of the rest of the house.  Both the evidence of what was found in the coffee table area and the evidence found in the search of the rest of the house is evidence which could be used in proof of serious offences under the Drugs Misuse Act and the Code.  The illegality did not affect the cogency of any of the evidence.
84. [84]
    Balancing the competing elements of the public interest I will not exclude evidence obtained from the search of the coffee table area.  Sergeant Cumner’s neglect to make an application under s 161 of the PPRA, compounded with the fact that the search of the house (beyond the coffee table area) was unlawful, together tip the balance in favour of excluding the evidence of the things found in the search of the kitchen and bedroom.  I therefore exclude that evidence.
85. [85]
    I make the following orders:

    1. The evidence of things found in the applicant’s bedroom, namely mobile phones, an iPad, some cannabis, 10 Comforol Forte tablets and seven Cephaloxin tablets is excluded.
    2. Evidence of what was found in the kitchen, being a ceramic bowl and a wooden bowl each containing a very small amount of cannabis and a glass implement used for the smoking of cannabis is excluded.
    3. The application is otherwise dismissed.