R v Millar[2020] QSCPR 17

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant is charged on indictment with three counts of possessing dangerous drugs in quantities exceeding 2 grams.  He applies under s 590AA of the Criminal Code for rulings that evidence obtained as a result of the search of:

   1. Tiffany Holdings Pty Ltd, trading as Compu Pool Products, located at a specified address in Nerang; and
   2. a dwelling located at a specified address in Mermaid Beach,

on 24 October 2018, be excluded at trial on the basis that the warrants purportedly authorising the searches were invalid.

2. [2]
   The applications for the warrants were made by Detective Senior Constable Ladlow, a member of the State Drug Squad.  The applications are in substantially the same terms – save that one sought the issue of a warrant to search the premises occupied by the business owned by the applicant; and the other sought a warrant to search a dwelling said to be occupied by the applicant.
3. [3]
   The applications specified the offence or suspected offence to which they related as follows:

“Drugs Misuse Act 1986, Section 9 – Possess Dangerous Drug

That between 1^st day of September 2018 and 8^th day of October 2018 at Nerang in the State of Queensland one Nicholas Alexander MILLAR unlawfully had possession of a dangerous drugs namely Cocaine”^[1]

4. [4]
   The “things sought” were described in the applications as follows:

“Dangerous Drugs namely Cocaine

All documentation relating to importation such as Purchase Orders/Receipts/Emails or similar

All postal packaging and containers

Any Digital media including hard drives/Usb or similar relating to importation.”^[2]

5. [5]
   The grounds relied on to support “a reasonable suspicion that evidence of the commission of an offence … is at the place” commenced with the following:

1. “1
   Operation HADES is a Queensland State Drug Squad Operation targeting the importation of dangerous drugs into Queensland.  As a result of investigations into this operation, I reasonably suspect [the applicant] is involved in the importation of dangerous drugs into Queensland from overseas.  I further suspect that [the applicant] is attempting to utilise strategies of deception by using his business address and false/employee’s name in order to facilitate the successful importing of the dangerous drugs…”^[3]

6. [6]
   The applications then referred to and gave details of intercepts of dangerous drugs into Queensland detected by Australian Border Force in 2013 and 2018.  The two intercepts from 2013 were of consignments addressed to the applicant at the dwelling address, which were found to contain MDMA and cocaine, respectively.   The intercepts in 2018 were consignments variously addressed to the applicant, the general manager of the Compu pools business or another name the police officer says she believes is not a real person, either to the dwelling address, or the business premises address, which were found to contain cocaine (in August and October 2018), MDMA (in March 2018) and GHB (in March 2018).  The most recent intercept detailed in the applications was on 15 October 2018, of 288.9 grams of cocaine.^[4]
7. [7]
   The warrants were issued by a Magistrate on 23 October 2018, authorising the search of the business premises and the dwelling, respectively, in relation to an offence described in the applications (set out in paragraph [3] above) for the seizure of evidence or property described in the applications (set out in paragraph [4] above).^[5]
8. [8]
   The warrants record that they were executed on 24 October 2018 by Detective Senior Constable Kerslake.
9. [9]
   The evidence before the court on the hearing of this application includes the applications and warrants, and evidence of the officer who applied for the warrants, Detective Senior Constable Ladlow, given at committal and before me.  DSC Ladlow has been a police officer since 1998, and a part of the drug squad for about eight years.  She accepted that “on the odd occasion we assisted with the AFP”, that is, the Australian Federal Police, but not as part of any joint operation.  She thought she had assisted AFP officers to execute search warrants perhaps twice.^[6]
10. [10]
    In explanation for the date range in the description of the offence in the applications for the warrants, DSC Ladlow referred to an assumption she made, about the consignments having been purchased online from overseas, and the amount of time the package might have taken to come from overseas.  That assumption was not expressly addressed in the application.^[7]
11. [11]
    In evidence given at the committal on 14 August 2019, in answer to the question what amounted to her reasonable suspicion that drugs would be either in the home premises and/or the business premises on the day she made the applications, being 22 October 2018, DSC Ladlow said “the information received from Border Force, with the … importations that had been seized … all were either at the business address or the residential address”.   As to the basis of her reasonable suspicion that cocaine would be in either of those premises on that day, DSC Ladlow said she “went by the last import that was seized”,^[8] which was of a substantial amount of cocaine, addressed to the business premises, as well as the two before that, both of cocaine as well.^[9]
12. [12]
    In further evidence at the hearing of the application, DSC Ladlow explained further, in relation to the basis for her suspicion, that it was based on the amount of imports that had come into either address during that year, and said “we weren’t sure if any other imports had gotten through, so that was the basis of the search warrant”.^[10]
13. [13]
    The committal hearing resumed on 18 October 2019.  The final question and answer in the further cross-examination of DSC Ladlow is emphasised by the applicant on this application:

“You’d accept from me that, as a general proposition, there was no information placed before the issuer … there was no information in there which logically led to a conclusion that there would be drugs on the premises, either premises, because the information in here – remember, we went through it last time – the information in here is only about material that had already been seized? --- Yes.”^[11]

14. [14]
    DSC Ladlow also gave evidence that she did not give any consideration to applying for a warrant under [s 3E of] the Crimes Act 1914 (Cth).^[12]  She accepted that she was aware that as a member of the Queensland police force, she is a constable under the Crimes Act.^[13]
15. [15]
    In further evidence given at the hearing of the application, DSC Ladlow did not accept that she should have given consideration to a “3E warrant”, because “I wasn’t investigating a Commonwealth offence.  I was investigating a State offence, which is … where the PPRA warrant comes under”.^[14]   DSC Ladlow did not consider that the evidence sought under the warrant related only to an importation offence.  She considered the packaging and other material and documentation could have been evidence of the offence of possessing the drugs, even apart from looking for the drugs themselves.^[15]
16. [16]
    Having regard to the whole of DSC Ladlow’s evidence, I do not accept that her one word answer to the general and convoluted proposition put to her, set out at paragraph [13] above, amounts to a “concession” by her that there were no reasonable grounds to suspect cocaine would be at either of the premises, as submitted by the applicant.
17. [17]
    A further factual matter asserted in the applicant’s submissions (but not the subject of evidence) is that upon entry to the Nerang (ie the business) premises, “Officer Kerslake stated that they were looking for evidence of ‘… specifically the importation of that (cocaine) offence’”.^[16]  The respondent accepts officer Kerslake said those words, but only after “he explained the State offence, [and] said that they were looking for possessing dangerous drugs, namely, cocaine…”.^[17]  The applicant relies upon what appears in [10] of his submissions as evidence that the police were investigating a Commonwealth (importation) offence, not a State offence.  In the absence of any actual evidence from officer Kerslake, or of the full context of what he said, and having regard to the evidence of DSC Ladlow, I do not regard it as reasonable to draw the inference invited by the applicant in this regard.
18. [18]
    The applicant submits that the search warrants were invalidly issued, as a result of which the evidence which was found in the course of the search – and on which the charges of drug possession are based – ought to be excluded.
19. [19]
    The first basis on which it is said the search warrants were invalidly issued is that there were no reasonable grounds to suspect that the searches would locate evidence of a State offence (of unlawful possession of a dangerous drug between 1 September 2018 and 8 October 2018).  The argument is that since the basis of the officer’s suspicion was expressed to be the information received from Border Force about the importations that had been seized, it follows that there could not be a reasonable suspicion that there would be cocaine at either premises – because it had all been seized, therefore delivery had been prevented.  The time of the alleged offence specified in the search warrants is also said to be illogical and not supported by the information in the applications.
20. [20]
    As to the first point, as the evidence of DSC Ladlow makes plain, the basis for the suspicion was the fact that packages of drugs which had been addressed to the business and residential premises had been seized, leading to the suspicion that there may have been other packages which had been successfully delivered.  This is conveyed by the sentence in each application:  “I further suspect that [the applicant] is attempting to utilise strategies of deception by using his business address and false/employee’s name in order to facilitate the successful importing of dangerous drugs”.  In my view, the facts of the intercepted packages, outlined in the application, gave rise to reasonable grounds for suspecting^[18] there may be drugs at either or both of the premises to which those packages were addressed, on the basis outlined by DSC Ladlow in her evidence – that is, that having regard to the number and type of packages which had been intercepted in the preceding months, there was a basis to suspect that other packages may have been successfully delivered.  
21. [21]
    In relation to the date range, on the basis of DSC Ladlow’s evidence, explaining how she determined the dates, it is possible there is a typographical error in the application – that it should have referred to dates between 1 September and 18 October 2018 [rather than 8 October].  1 September is a few days after 28 August (the second last consignment which was seized) and 18 October is a few days after 15 October (the last consignment which was seized).  But in any event, in my view this does not lead to the conclusion that the warrants were invalid.  The requirement is that the object of the search be specified by reference to a particular offence,^[19] but it is not necessary that the warrant state the offence with the same precision and specificity as is required for an indictment.  The description of the suspected offence was sufficient to meet the purpose of the requirement – that is, so that persons executing and affected by the warrant understand what is being sought.^[20]
22. [22]
    The second basis on which it is contended the warrants were invalid is “because the evidence sought to be located and seized, as at the date of the issue of the search warrants, could not amount to evidence of the offence specified within the search warrants”.^[21]  The applicant contends that what was really being investigated was a Commonwealth offence (of importation) not a State offence (of possession), emphasising the second, third and fourth of the “things sought”, as set out in paragraph [4] above.   The applicant submits that as the object of the search was evidence of a Commonwealth offence, not a State offence, the issue of a warrant under ss 150, 151 and 156 of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA) could not authorise the search.
23. [23]
    The applicant does not suggest DSC Ladlow acted deliberately improperly, or recklessly, in applying for a warrant under the PPRA; but rather contends she made a mistake in doing so, as she should have applied for a warrant under s 3E of the Crimes Act.
24. [24]
    The applicant relies upon the word “offence” in s 150(1)(a) of the PPRA as bearing the meaning given in s 2 of the Criminal Code, an equivalent of which has been construed to include illegal acts and omissions punishable under the criminal law of the State, but not to include an offence against a law of the Commonwealth (referring to Kiely v R [1974] WAR 180).^[22]  The applicant submits on that basis there was no power, under the PPRA, to issue a warrant authorising a search in relation to a Commonwealth offence, and that the warrant is therefore invalid.
25. [25]
    Although there is no definition of “offence” in the PPRA, nor in the Acts Interpretation Act 1954, I accept for present purposes that the word “offence” where it is used in s 150(1)(a) and s 156(1)(b)(i) of the PPRA has the meaning as defined in s 2 if the Criminal Code,^[23] as that has been construed, referring to an offence against a law of the State.
26. [26]
    The difficulty with the applicant’s submission, however, is that on the evidence before the court, the police were not seeking to investigate a Commonwealth offence.  The applications for the warrants expressly identify the offence as the State offence of possessing a dangerous drug, namely cocaine.   The evidence of DSC Ladlow confirmed that was the offence the subject of her focus.  She gave no consideration to applying for a warrant under the Crimes Act because she was not investigating a Commonwealth offence, she was investigating a State offence.  There was no reason submitted why DSC Ladlow’s evidence should not be accepted as truthful, and I can see no reason otherwise why it should not be. 
27. [27]
    Counsel for the applicant emphases the list of “things sought” (see paragraph [4] above) – in particular the documentation relating to importation, postal packaging and containers, and any digital media relating to importation – as being consistent only with the Commonwealth offence of importation, and having no relation to the identified State offence of possession.  But DSC Ladlow explained, in her evidence, why she considered those things might be evidence of the possession offence, even apart from looking for the actual drugs themselves.
28. [28]
    For the applicant, reliance was placed on the principle articulated in Williams v Keelty [2001] FCA 1301 at [234] that, if a statutory power is exercised for more than one purpose, where one of the purposes is improper, the exercise of the power will be vitiated if the improper purpose was a substantial purpose in the sense that the decision would not have been made but for the ulterior purpose.  In the present context, the submission is that the decision to issue the warrant would not have been made but for the “ulterior purpose”, namely, of searching for evidence of a Commonwealth offence.  But again, there is no evidential basis on which to accept that it was a substantial purpose of the police officer, to search for evidence of a Commonwealth offence.  Her sworn evidence is completely inconsistent with that.   In the face of DSC Ladlow’s sworn evidence, the truthfulness of which was not challenged, I am not prepared to infer, simply from the description of the “things sought”, that she was, contrary to that evidence, in fact investigating a Commonwealth offence.
29. [29]
    The officer’s evidence that the packaging etc may have been evidence of the possession of drugs is supported having regard to the offence specified – of possessing dangerous drugs in a period prior to the date of the warrant, and coincident with the times of the two earlier consignments.   I accept the submission of the respondent that material of this kind was capable of being circumstantial evidence of a State drug possession offence.
30. [30]
    In light of the conclusion I have reached, on the basis of the evidence before the court, it is unnecessary to address the issue of severance.  I am not satisfied that the warrant was affected by a jurisdictional defect, as contended by the applicant.
31. [31]
    As I am not persuaded the applicant has made out either basis for finding the warrants were invalid , the application to exclude the evidence obtained as a result of the searches of the business premises and the dwelling is dismissed.