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R v Orchard[2020] QSCPR 5

SUPREME COURT OF QUEENSLAND

CITATION:

R v Orchard [2020] QSCPR 5

PARTIES:

THE QUEEN

(respondent)

v

MATTHEW CRAIG ORCHARD

(applicant)

FILE NO/S:

BS 1002 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application under s 590AA of the Criminal Code 1899 (Qld)

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

16 March 2020

DELIVERED AT:

Brisbane

HEARING DATES:

13 December 2019; 12 March 2020

JUDGE:

Ryan J

ORDER:

  1. The application is dismissed

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – ILLEGALLY OBTAINED EVIDENCE – where the searches of the applicant and his car were purportedly undertaken under the powers conferred upon police by sections 29(1) and 31(1) of the Police Powers and Responsibilities Act 2000 (PPRA) – where the only facts upon which a reasonable suspicion could have been based were limited to information about previous drug activity in the car park of the hotel; the physical and aesthetic presentation of the persons in the vehicle; and the applicant’s demeanour very early on in his interaction with the police officer – where these facts did not provide a sufficient factual basis for a reasonable suspicion – where in balancing the relevant considerations, the evidence ought not to be excluded in the exercise of judicial discretion

Criminal Code (Qld) s 590AA

Police Powers and Responsibilities Act 2000 (Qld) s 29, s 30, s 31, s 32

Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701

George v Rockett (1990) 170 CLR 104

R v Fuentes (2012) 230 A Crim R 379

R v McCosh [2018] QSCPR 8

R v Versac [2013] QSC 46

COUNSEL:

M Whitbread for the Crown

L Ackermann for the accused

SOLICITORS:

Director of Public Prosecutions (Qld) for the Crown

Brisbane Criminal Lawyers for the accused

Background

  1. [1]
    Matthew Craig Orchard has been charged on indictment with three offences: possessing a dangerous drug (methylamphetamine) in excess of two grams, possessing a dangerous drug (Alprazolam) and possessing counterfeit money.  The offences were allegedly committed on 4 January 2019.  Evidence of the offences was obtained in the course of a search of his person and car that day.
  2. [2]
    That evidence included the finding (either in the car or on the applicant’s person) of a glass smoking pipe; prescription medication in the name “Honsa”; more than $5,400 in cash including $2,880 in counterfeit currency; and five clip seal bags containing a total of 10.22 grams of substance including (I infer from the charge on the indictment) more than 2 grams of pure methylamphetamine.  The clip seal bags were marked with the letters “B” and “HB”, from which the prosecution invites the inference that they were intended for “ball” and half-ball” amounts of methylamphetamine.
  3. [3]
    The applicant, applies for an order in the following terms:

Evidence of any thing found by police during the roadside search of me and/or vehicle Volkswagen Passat registration number 198WMV on 4 January 2019 shall be inadmissible at my trial in the Supreme Court respect (sic) of the charges of (sic) arising from that search.

  1. [4]
    More correctly, the application should have been for an order that the evidence be excluded in the exercise of my discretion.  Evidence unlawfully obtained is not, for that reason alone, inadmissible in Australia.  Accordingly, I have treated the application as one to exclude the evidence in the exercise of my discretion.

The law

  1. [5]
    The searches of the applicant and his car were purportedly undertaken under the powers conferred upon police by sections 29(1) and 31(1) of the Police Powers and Responsibilities Act 2000 (PPRA). 
  2. [6]
    Speaking generally, those sections empower a police officer to detain and search a person or a vehicle if –
    1. (a)
      in the case of the detention and search of a person – the police officer “reasonably suspects” that “any of the prescribed circumstances for searching a person without a warrant exist”; or –              
    2. (b)
      in the case of the search of a car – the police officer “reasonably suspects” that “any of the prescribed circumstances for searching a vehicle without a warrant exist”.
  3. [7]
    One of the relevant prescribed circumstances in which a police officer may lawfully detain and search a person without a warrant is if the officer reasonably suspects that the person “has something that may be … an unlawful dangerous drug” (see section 30(a)(ii) PPRA).
  4. [8]
    One of the relevant prescribed circumstances in which a police officer may lawfully search a vehicle (and detain its occupants) without a warrant is if the officer reasonably suspects that there is something in the vehicle which “may be an unlawful dangerous drug” (see section 32(1)(c) PPRA).
  5. [9]
    In Schedule 6 of the PPRA, “reasonably suspects” is defined to mean “suspects on grounds that are reasonable in the circumstances”.
  6. [10]
    In addition to the assistance provided by the definition, there are many cases which discuss what a “reasonable suspicion” entails.  In R v McCosh [2018] QSCPR 8, Davis J explained (my emphasis) –[1]

… The notion of “reasonable suspicion” was considered by the High Court in George v Rockett [(1990) 170 CLR 104] 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 [[1970] AC 942 at 948] and Queensland Bacon Pty Ltd v Rees [(1996) 115 CLR 266 at 303] as follows:

“Suspicion, as Lord Devlin said in Hussein 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 (sic) that the situation of the payer is in actual fact that which the subsection 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.”

  1. [11]
    His Honour added:[2]

In Manley v Tucs [(1995) 40 SASR 1], 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”.

  1. [12]
    His Honour noted by way of a footnote that this was followed in Rowe v Kemper.[3]
  2. [13]
    Dalton J in R v Fuentes[4] explained a state of suspicion as follows (citations omitted):

“… a state of conjecture or surmise…It is a positive feeling of apprehension or mistrust, but it is a slight opinion without sufficient evidence.  Facts which reasonably ground a suspicion may be quite insufficient to reasonably ground a belief.  Nonetheless, to have a reasonable suspicion some factual basis for the suspicion must exist.  There must be sufficient factual grounds reasonably to induce the suspicion.  The facts must be sufficient to induce the suspicion in the mind of a reasonable person...”

  1. [14]
    The prosecution referred me to Kirby P’s statement in Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 at 714, that the word “suspected” falls short of “known” or even “shown”.  It was also said in that case that whether a relevant person had reasonable grounds for forming a suspicion or a belief must be determined not according to the subjective beliefs of the police at the time but according to an objective criterion: per Kirby P at 714.
  2. [15]
    The applicant submits that the relevant police officer did not have a reasonable suspicion that either the applicant was in possession of, or that his car might contain, something that may be a dangerous drug; the officer was therefore not lawfully empowered to detain and search him or his vehicle; and the evidence obtained thereby was unlawfully obtained. 
  3. [16]
    In the Crown’s submission, the facts relied upon by the police officer as the basis for his suspicion were such as would create a reasonable suspicion in the mind of a reasonable person.  And even if that were not the case, the Crown submits that I ought not to exercise my discretion to exclude the evidence.

The facts

  1. [17]
    The police officers involved in the search of the applicant’s vehicle (a VW) were Senior Constables Lea and Turner of the Upper Mount Gravatt Tactical Crime Squad.
  2. [18]
    The decision to detain and search was Senior Constable Lea’s. 
  3. [19]
    The parties agreed that the Court was to be concerned therefore only with the suspicion formed by Senior Constable Lea and the basis for it, even though Senior Constable Turner gave evidence to the effect that he held the same suspicion and, if Senior Constable Lea had not exercised his power to detain and search without warrant, he would have done so. 
  4. [20]
    It follows that the cross-examination of Senior Constable Turner about the basis for his suspicion was irrelevant for the purposes of the Court’s evaluation of the suspicion held by Senior Constable Lea. 
  5. [21]
    For completeness, I note that Senior Constable Lea did not suggest that he relied upon any of the information provided to Senior Constable Turner in forming his own suspicion.  And further, there was no conversation between the officers before Senior Constable Lea exercised the power to detail and search. 
  6. [22]
    However, the parties agreed that Senior Constable Turner’s evidence was relevant for the information it gave the Court about the facts available to Senior Constable Lea, primarily by way of his (Senior Constable Turner’s) body worn camera footage.
  7. [23]
    At the relevant time, the police officers were about to conduct a patrol of the car park of the Salisbury Hotel in an unmarked police car.  They had turned into the hotel car park from a side street.
  8. [24]
    The VW, driven by the applicant, drove past them.  They saw it park, nose in.  They saw that the car had at least two if not three occupants – the applicant (driving) and two passengers.  They pulled the police car up behind the VW, almost perpendicular to it. 
  9. [25]
    Both officers were wearing cameras (known as body worn cameras “BWCs”). 
  10. [26]
    The BWCs are programmed so that the visual recording of relevant events commences immediately after they are activated, but the audio does not commence until 30 seconds into the recording. 
  11. [27]
    From the Court’s point of view, the BWC footage and audio provides a solid basis for an objective evaluation of the reasonableness of Senior Constable Lea’s claimed suspicion.  The Court is not confined to the testimony of the officers about what they saw and heard – the Court is able to see and hear most of what was seen and heard by the officers for itself.   
  12. [28]
    Senior Constable Lea got out of the police car and approached the driver’s side of the VW.  He activated his BWC.  At about the same time, the applicant got out of his car and approached Senior Constable Lea. 
  13. [29]
    Senior Constable Turner also got out of the police car.  He activated his BWC. 
  14. [30]
    The BWC footage shows that the occupant of the front passenger seat was out of the vehicle by the time the applicant was approaching Senior Constable Lea.
  15. [31]
    The BWC footage shows that Senior Constable Lea spoke primarily to the applicant. 
  16. [32]
    Senior Constable Turner spoke to the man sitting in the back seat of the VW – who did not get out of the car until asked to do so a little later. 
  17. [33]
    At least insofar as the BWC recording is concerned, police asked no questions of the front seat passenger. 
  18. [34]
    Obviously, at some stage of their interaction, Senior Constable Lea formed the suspicion that caused him to exercise the power to detain and search. 
  19. [35]
    The applicant and the two occupants were asked to move to the grassed area at the front of the hotel.  Once they were all on the grassed area, and after Senior Constable Turner had conducted some checks on the personal details provided by the back seat passenger, Senior Constable Lea informed them all that they had been detained for the purposes of a search.

The time at which Lea determined to detain and search

  1. [36]
    It is critical to identify the point at which Senior Constable Lea had in fact determined to detain and search the applicant and the occupants of the VW and the car itself.
  2. [37]
    The applicant submits that the relevant point in time was when the police car pulled in behind the VW.  The prosecution submits, in effect, that the relevant point in time was just before the applicant and the other two occupants of the VW were informed by Senior Constable Lea that they were detained.
  3. [38]
    I have watched the BWC footage many times.  The combined effect of it, read together with the statements of Senior Constables Lea and Turner, reveals the following –
    1. (a)
      Lea’s BWC footage commences at a point at which he and the applicant were already in conversation – but there is no audio of their opening conversation;
    2. (b)
      On the basis of an inference I have drawn from the content of later conversation captured by the audio recording, the applicant informs Lea that he has come from his partner’s place;
    3. (c)
      Turner’s BWC footage shows the applicant’s overall presentation in the initial stages of the recording to be “down cast” (my phrase) – although he later asserts himself when he and the others are detained;
    4. (d)
      The driver’s door of the VW is ajar – presumably left so by the applicant;
    5. (e)
      Lea is using an iPad;
    6. (f)
      Turner is using an iPad;
    7. (g)
      The front passenger gets out of the VW while Lea is talking to the applicant.  He leans against the open front passenger door.  He is drinking from a can and smoking;
    8. (h)
      Lea’s audio recording begins with Lea discussing with the applicant various forms of identification that he might have on him.  The applicant refers to having to use his credit card;
    9. (i)
      The applicant has a pained look (my phrase) on his face;
    10. (j)
      At about the same time as Lea is engaged with the applicant, Turner speaks briefly to the front passenger and hands him something (perhaps a police “business” card);
    11. (k)
      The applicant walks a few steps away from Lea and back, parallel to the VW – while Lea is attending to something;
    12. (l)
      It seems that in the absence of a question from Lea, the applicant asks the front passenger (Tor/Tom??) where he is living;
    13. (m)
      The front passenger answers with “Ipswich” and when the applicant asks “whereabouts” he answers with a street name;
    14. (n)
      Turner informs someone else (likely police) by telephone that they have “stopped a car” or “stopped at a car park” and makes statements about how long they will be, including “we may not be that long, we’ll see how we go”;
    15. (o)
      Lea then informs someone (I presume other police) of the registration number of the VW and informs the person to whom he is speaking that there were three male occupants of the VW (“three heads on board, three males”).  It seems that during this conversation, Lea requested an additional police crew to assist (see paragraph 9, Lea’s statement dated 14 October 2019);
    16. (p)
      While Lea is making an enquiry about the VW, the applicant moves oddly – by kicking his feet one by one and bending forward at the waist;
    17. (q)
      At almost all times, his arms are behind his back;
    18. (r)
      Lea then turns his attention to the applicant again and asks further questions – (“so we’ll go through this”) beginning with the applicant’s name;
    19. (s)
      The applicant answers Lea’s questions co-operatively and without emotion;
    20. (t)
      The applicant is “clean cut”.  He is casually, but neatly, dressed.  His clothes appear laundered.  He is clean shaven and he has a neat, modern haircut.  He has no obvious blemishes or marks on his facial skin. His overall appearance is of someone who looks after himself and his grooming;
    21. (u)
      The applicant looks younger than the front passenger and the rear passenger;
    22. (v)
      The front passenger is not well groomed.  He has unkempt hair and an unkempt beard. 
    23. (w)
      His clothes do not look as fresh as the applicant’s clothes;
    24. (x)
      He is wearing noticeable earrings and a bracelet;
    25. (y)
      His overall appearance is of someone who does not look after his grooming;
    26. (z)
      After some questions about his girlfriend, whom he said lived at Tarragindi, the applicant explains that he met his “friend” at the “Night Owl” where he and the two other occupants of the VW had a Powerade.  He said they had a chat and thought they’d go to the hotel;
    27. (aa)
      He then asked the front seat passenger whether it was the Tarragindi Night Owl where they’d met and had an ice cream;
    28. (ab)
      Senior Constable Turner speaks to the rear passenger;
    29. (ac)
      To do so, he opens a little more the driver’s door and puts his head into the car.  He asks the back passenger for “id” and, when none is produced, is sceptical about his coming to the pub without a wallet or id;
    30. (ad)
      The back seat passenger opens the back driver’s side door of the car but remains seated in the car, eating a burger;
    31. (ae)
      Turner looks into the VW through one of the rear windows;
    32. (af)
      The front passenger asks whether he is permitted to move into the shade (he is);
    33. (ag)
      Turner asks the back seat passenger to jump out of the vehicle;
    34. (ah)
      Turner says to him that he will “grab” his name;
    35. (ai)
      Turner asks the back seat passenger whether it is his bag in the back seat;
    36. (aj)
      The back seat passenger says that it is;
    37. (ak)
      The applicant and the two occupants of the VW are asked to move onto the grassed area in front of the hotel;
    38. (al)
      The applicant and the occupants of the VW are asked how they know each other, and the applicant says that the front seat passenger was “an old mate from Ipswich”;
    39. (am)
      The front seat passenger is smoking and drinking from a can;
    40. (an)
      The rear seat passenger is still eating and holding a McDonald’s bag and what looks like a bottle of Powerade;
    41. (ao)
      The applicant asks to use the toilet; He is told to wait “a sec”;
    42. (ap)
      Turner asks the rear seat passenger for his name – it does not “come up” and the rear passenger appears to correct or confirm the spelling of his surname;
    43. (aq)
      The rear seat passenger says he is from New South Wales;
    44. (ar)
      Lea asks him what brings him to Queensland (“Family? Friends?”);
    45. (as)
      Turner continues to question the rear seat passenger about where he is staying and is sceptical that he has nothing in his bag with his name on it;
    46. (at)
      The applicant and his passengers are informed by Lea that they have been detained for the purposes of a search. 
  4. [39]
    There was little cross-examination of Senior Constable Lea about his calling for assistance.  In particular, he was not asked about the state of his suspicion before he called for assistance. 
  5. [40]
    It is obvious however that the extra police were requested to help Senior Constables Lea and Turner with the ultimate search of the persons detained and the VW, in circumstances in which Lea and Turner were outnumbered by the applicant and the two other occupants of the VW.
  6. [41]
    Whilst I would have preferred a more solid evidential foundation for doing so, I am prepared to proceed on the basis that Senior Constable Lea had determined to search the applicant and the other occupants of the VW, and the VW itself, by the time he asked for an additional crew to attend at the location and assist.   

Discussion

  1. [42]
    As noted above, the parties agreed that it was the suspicion of Senior Constable Lea that mattered and that I was to focus on the facts nominated by him to ground his suspicion to objectively determine how reasonable it was for him to hold it in the circumstances.
  2. [43]
    Empowering police to detain and search persons or vehicles is an essential investigative tool of modern policing.  But it is inconsistent with an individual’s right to go about their day uninterrupted by invasive police conduct. 
  3. [44]
    As was explained in George v Rockett, legislation must balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of their privacy and property.  The balance is achieved by accepting that a person should not be detained and searched unless a police officer has (for example) reasonable grounds for suspecting that the person may be in possession of a dangerous drug. 
  4. [45]
    The element of “reasonable” is designed to ensure that facts exist which are sufficient to induce suspicion in the reasonable person.  Among other things, it has been said that this requirement should reduce arbitrary searches based on stereotypes, generalisations and personal factors such as a person’s age, race and appearance. 
  5. [46]
    I am required to consider whether the facts nominated by Senior Constable Lea as grounding his suspicion are such as would cause a reasonable person to connect those facts to a potential drug offence.
  6. [47]
    A suspicion is more than idle wondering whether something exists or not – it is a positive feeling of actual apprehension or mistrust.
  7. [48]
    At the point at which I am to evaluate the reasonableness of Senior Constable Lea’s suspicion, the only facts upon which it could have been based were limited to information about previous drug activity in the car park of the hotel; the physical and aesthetic presentation of the persons in the vehicle; and the applicant’s demeanour very early on in his interaction with Senior Constable Lea – that is, before the call for assistance was made.
  8. [49]
    The police officers understood – whether they had personal experience of it or not – that drug transactions occurred in the car park of the Salisbury Hotel at about the end of a “tradies’” working day on a Friday (4 January 2019 was a Friday).  That was the very reason why they were patrolling the car park.  As Senior Constable Turner explained (my emphasis) –

The Salisbury Hotel is, from my experience – or our office’s experience … It’s high – a very high level of drugs go through here, especially Friday afternoon early as the trades people start to come in … You generally get a lot of drug activity through there … That time of the afternoon is prime time.

  1. [50]
    Asked whose “call” it was to patrol the car park, Senior Constable Turner said –

It’s just something we discussed at the time.  We all have different things we’re looking at (sic) the time.  But generally our area is South Brisbane district, so we know all the hotspots.  So over the time we sort of just float to areas what we are aware is high in drug offenders and property crime offenders … [while we are on patrol] … we were slowly heading back to the office.  It was nearly … 3 o’clock … And generally the Salisbury Hotel is – those timings we generally spend a little bit of time there.

  1. [51]
    While he was unable to give the date of the last time in which he had been involved in a search of vehicle or persons in the hotel car park, he said, “That was our – that’s our job … That area is quite active … drug and property crime is what we do.   Do you know how many times we talk to people a day; how many cars we search; how many search warrants we do?  I can’t give you particulars”.
  2. [52]
    Although counsel for the applicant spent some time cross-examining both police officers about their own experience of the commission of drug offences in the car park – that cross-examination missed what I consider to be the relevant point. 
  3. [53]
    I acknowledge that Senior Constable Lea referred in his statement to his “experience” of drug activity in the hotel car park.[5] And I acknowledge that, under cross-examination, he was unable to nominate particular dates upon which he had uncovered evidence of drug activity at the hotel car park.  However, I do not consider his inability to nominate those dates to warrant my discounting his evidence that the car park was known to him as a place at which drug transactions occurred. 
  4. [54]
    It is plain, on the evidence of Senior Constable Turner, that he and Senior Constable Lea were attached to a unit which specialised in drug and property crime.  That unit’s intelligence identified locations at which such crime occurred.  Those locations included the car park of the Salisbury Hotel at a certain time.  The police officers were – obviously – in possession of that intelligence.  Whether or not they could provide details of their own experience of arrests in the car park was, in my view, beside the point. 
  5. [55]
    There was no direct challenge to the fact that the car park of the hotel was a location at which there was drug activity at certain times.  And even if such a challenge was to be inferred from the questions put in cross-examination, I accept the evidence of the police officers to the effect that the car park was included in their patrols because they held information that drug activity occurred regularly in that car park at about the time they patrolled it.  As Senior Constable Turner said – that was their job.
  6. [56]
    I proceed on the basis that one of the facts upon which Senior Constable Lea’s suspicion might validly be based was police information or intelligence that drug activity had regularly occurred previously in the car park of the hotel at about the same time and day.  I proceed further on the basis that that fact provided the context for Senior Constable Lea’s evaluation of other objective facts.
  7. [57]
    Plainly, the police officers’ attention had been drawn to the VW as soon as they saw it.  And plainly, something about the VW or its occupants caused them to pull up behind the car and question the applicant and his passengers.
  8. [58]
    During his cross-examination of the police officers, counsel for the applicant referred to the police car as “boxing in” the applicant’s car and effectively detaining him from that point.  The police officers denied that they had parked the police car as they did to detain the applicant or to prevent the applicant from moving the VW.  Their evidence was to the effect that their car had been parked in accordance with normal procedures, designed to protect the officers themselves from harm. 
  9. [59]
    Counsel for the applicant submitted that from the point at which the police car pulled up behind the VW, the applicant had been detained for the purposes of a search.  He submitted, in effect, that the reasonableness of the police officer’s suspicion ought to be evaluated on the basis of the facts of which he was aware at that time.
  10. [60]
    On the strength of a “hunch” or a suspicion which was yet to evolve into a reasonable suspicion, a police officer may attempt to investigate certain matters further – including by way of lawful conversations with relevant persons.  How far that investigation goes will likely depend on how co-operative those relevant persons are with police questioning. 
  11. [61]
    I do not suggest that a hunch is equivalent to a reasonable suspicion – the authorities make it plain that it is not.  However, I proceed on the basis that the police officers pulled up behind the VW on the strength of hunch, or the first sense of a suspicion, that the applicant and the occupants of his vehicle were involved or were about to be involved in a drug transaction.  That hunch or first sense of suspicion could only be based on the physical appearance and aesthetic of the applicant and his front seat passenger (while they were still in the VW) in the context of police intelligence about drug activity in the car park. 
  12. [62]
    I do not accept the applicant’s submission that he was detained from the moment the police car pulled up behind him.  I accept the evidence of the police officers that they parked the police car in accordance with their usual habit in similar circumstances. 
  13. [63]
    However, as I have already indicated, I proceed on the basis that Senior Constable Lea in fact determined to detain the applicant and the other occupants of the VW and the car at the moment he asked for other police to attend to assist.  That point was reached quite early in the piece. 
  14. [64]
    I find that there was, in this case, a decision by Senior Constable Lea to detain, but a delay before he acted on that decision by way of informing the applicant and the other occupants of the VW that they were detained.
  15. [65]
    Thus I am to assess the reasonableness of Lea’s suspicion that the applicant was in possession of dangerous drugs (or there were dangerous drugs in his car) at the point at which he asked for other police assistance.  This was before he asked any questions of substance of the applicant – although he had an opportunity to observe the applicant and the front seat passenger outside of the police car, including the applicant’s demeanour and what he described as the applicant’s being apparently “protective” of his vehicle. 
  16. [66]
    In his oral evidence, Senior Constable Turner observed that the occupants of the VW had a “deer in the headlights” look when they saw the police in their vehicle.  Senior Constable Lea did not refer to that look, or anything equivalent to it, whilst they were still in the VW – and I have not taken into account that description of their look in my evaluation of the reasonableness of Senior Constable Lea’s suspicion.
  17. [67]
    Any particular observations by Lea of the occupants of the VW (before the police alighted from the police car) were not included in Senior Constable Lea’s first statement.  They were included in his addendum statement.  It is reasonable to assume that the addendum was specifically prepared for the purposes of this application, based on its date. 
  18. [68]
    In his addendum statement, Senior Constable Lea explained –

My attention was originally drawn to the vehicle and occupants as I considered the occupants as what I refer to as a mis-match.  The driver, being the defendant, appeared to be clean cut, neat and tidy whereas the front passenger appeared rather unkempt and dishevelled.

  1. [69]
    Lea said in evidence that he first saw the VW as he was driving into the car park from a side street.  He said the VW crossed the path of the police vehicle as it travelled to its car parking space.  He explained that he brought with him – as he approached the VW – his police issued iPad, so that he might confirm the identity of the applicant.
  2. [70]
    Under cross-examination, he said that he had been a police officer for seven years and has spent the last four with the Upper Mount Gravatt Tactical Crime Squad (his “present” “unit”).  He elaborated on the mis-match, as he saw it.
  3. [71]
    He further explained the reason why his attention was drawn to the VW - namely because one of its occupants, not the applicant, was unkempt and dishevelled with messy hair and a beard.  He was a bit scruffy.  The defendant was not. 
  4. [72]
    He said that his reasonable suspicions began when he saw the mismatch between the applicant and his front passenger and then he spoke to them and his suspicion started to “build” from there.  As I have indicated, I will evaluate the reasonableness of Senior Constable Lea’s suspicion before he had any conversation of substance with the applicant.
  5. [73]
    In oral evidence, Senior Constable Lea described the applicant as being “protective” of his vehicle when he approached.  He said, “that’s exactly how I felt … You know when you can feel someone close to you – close to you from the rear or you can feel that presence there? … That’s what I’m trying to explain here, that his demeanour, his body was not letting me approach any further or closer to the vehicle.”  He said it was not “normal” for the applicant to approach him.  “Nine times out of 10”, people will wait for police to approach them. 
  6. [74]
    He was questioned about his asking the applicant and the occupants of the VW for their particulars.  I should say that it appeared to me that Senior Constable Lea was only questioning the applicant and not the other occupants.  But regardless, Senior Constable Lea said that he did not exercise any power that compelled the applicant to answer his questions.  He said it was “a conversation”: “We can ask anybody for anything.  Not demanding any power there.”  Because I have concluded that Senior Constable Lea determined to detain the applicant before he had a conversation of substance with him, I need not concern myself with the lawfulness or otherwise of his questioning of the applicant.
  7. [75]
    Senior Constable Lea said the “feeling overall” which he was “getting off” the applicant was that he was nervous, stressed and flustered.  He said – in effect – that there was nothing on the BWC footage which he could point to, to support those feelings.  He agreed that he was talking about “a vibe”. 
  8. [76]
    I consider that it is important to approach this matter in a realistic and common sense way – bearing in mind the need to set appropriate limits upon the power of police officers to detain and search citizens and to ensure that that power is not exercised arbitrarily.
  9. [77]
    The police officers were patrolling the carpark of the Salisbury Hotel because they understood that drug (and perhaps property) crimes were committed at that location.  It is reasonable to assume that they were – and indeed, were expected to be – “on the look out” for anything which they considered at least warranted further exploration– if not raised a reasonable suspicion. 
  10. [78]
    Senior Constable Lea was not a particularly eloquent witness and he struggled to describe the “mismatch” which he asserted was the factual basis for at least the development or “building” of his reasonable suspicion.
  11. [79]
    Counsel for the applicant submitted that the alleged mismatch between the applicant and his front seat passenger was “trivial”.  He submitted that Senior Constable Lea could not put it any higher than the fact that the applicant was clean shaven and the front passenger had a beard.
  12. [80]
    I consider that the word “mis-match” is as good as any other to describe the incongruity of the applicant and his front passenger keeping company.
  13. [81]
    The question is whether such a mis-match at the location provided reasonable grounds for a suspicion that the applicant and the occupants of the VW may have been in possession of drugs.
  14. [82]
    With some hesitation, I conclude that the mis-match at the location did not provide a sufficient factual basis for a reasonable suspicion that the applicant or his front seat passenger may have been in possession of dangerous drugs.
  15. [83]
    In my view, the applicant’s demeanour (including his apparent attempts to protect the VW and his down cast presentation) does not add sufficiently to the facts available to a reasonable person as to found a relevant reasonable suspicion. 
  16. [84]
    I have reached that conclusion with some hesitation because in my view other aspects of Senior Constable Lea’s interaction with the applicant would have provided a solid basis for the formation of a reasonable suspicion.  Indeed, that was the effect of Senior Constable Lea’s evidence – his suspicion was building.  However, at the time he called for police assistance, his suspicion had not yet reached the level of a reasonable suspicion.  It is likely that Senior Constable Lea called for further assistance as early in the piece as he did because he was confident that he was right about what was going on between the applicant and the other occupants of his vehicle – and of course, he was right.  But without more, reasonable grounds for detention and search had not yet emerged.
  17. [85]
    Another reason for my hesitation is that I gave consideration to what ought to be the police approach to their patrolling a car park known to be the location of drug activity.  I asked myself what they needed to see before they were permitted to lawfully detain and search.
  18. [86]
    I ultimately reached the view that a mis-match between persons in company was relevant to the decision to detain and search – but something more was required before the police might in fact lawfully detain and search, such as, for example, those mis-matched persons not leaving the vehicle at the speed at which one might expect them to leave it if they were intending to attend at the hotel premises; or the vehicle attempting to exit the carpark without any of the persons in the car entering the premises; or information conveyed during lawful questioning.
  19. [87]
    Thus, I find that the relevant evidence was unlawfully obtained and I am now to consider whether it ought to be excluded in the exercise of my discretion.
  20. [88]
    I have considered the factors relevant to the exercise of my discretion listed in R v Versac [2013] QSC 46 at [6].  I consider that counts 1 and 3 concern serious offences and that the evidence revealed by the search is cogent – being physical evidence.  It provides almost all of the evidence in the proceedings.  It may have been obtained lawfully – depending on the way in which the applicant and the occupants of his vehicle might have behaved had police shown no interest in them (although this is complicated by the fact of Senior Constable Turner’s evidence that the applicant and his front seat passenger saw the police before the applicant parked the VW).  I find nothing to suggest that Senior Constable Lea intended to circumvent the legislation.  Indeed I accept that from his point of view, his suspicion was building to the point just before he announced that he was detaining and searching.  But of course, I have found that he determined to detain the applicant et al from the time at which he called for assistance from other police. 
  21. [89]
    The applicant himself does not suggest that the police officers acted maliciously.  Rather, he submits that they acted with reckless or deliberate disregard for the law.  I do not agree.  I consider that Senior Constable Lea acted in haste by calling for other police when he did in an attempt to ensure that assistance was on hand at the relevant time – confident that he had identified persons engaged or about to be engaged in drug activity but aware of his need to reach the point of reasonable suspicion before he actually detained and searched (as revealed by his questioning the applicant about, for example, where he and the other men met).
  22. [90]
    In balancing the relevant considerations, I am of the view that the evidence ought not to be excluded in the exercise of my discretion and I dismiss the application. 

Footnotes

[1]At [45].

[2]At [46].

[3][2009] 1 Qd R 247 at [6].

[4](2012) 230 A Crim R 379 at 385; [2012] QSC 288 at [21].

[5]He said, “In my experience, drug activity ie. supplying and possession of drugs occurs often at this location”.

Close

Editorial Notes

  • Published Case Name:

    R v Orchard

  • Shortened Case Name:

    R v Orchard

  • MNC:

    [2020] QSCPR 5

  • Court:

    QSCPR

  • Judge(s):

    Ryan J

  • Date:

    16 Mar 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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