R v Mangan[2020] QSCPR 8

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant is charged on indictment with one count of unlawfully possessing the dangerous drug methylamphetamine, in a quantity exceeding 2.0 grams, and one count of unlawfully possessing the dangerous drug buprenorphine.  Both offences are alleged to have been committed on 9 May 2019, and arise from things found in the course of a search of the applicant, and of a car, on that day.  He applies for a ruling under s 590AA of the Criminal Code that the evidence obtained from the search of his person and the car be excluded, on the basis that the searches were unlawful.
2. [2]
   At about midday on 9 May 2019 Snr Constable Mamaril and Constable Tighe were conducting patrols in the car park of the Edinburgh Castle Hotel in Kedron.  They noticed a white Holden commodore, which had registration plates that were made of paper behind a laminate frame.  They decided to go into the Hotel, to see if they could locate the driver of the car.
3. [3]
   They went into the “pokie” section of the Hotel, as that was where there were some people, although there were only about three or four people there.
4. [4]
   Snr Constable Mamaril saw a male person (the applicant) playing a pokie machine and approached him.  Constable Tighe, meanwhile, spoke to two other people who were there.
5. [5]
   Snr Constable Mamaril gave evidence that, as he approached the applicant, the applicant was talking on his mobile phone, holding it in his right hand.  Snr Constable Mamaril saw that he was holding money in his other hand, a mixture of $50 and $20 notes.   Snr Constable Mamaril said that after the applicant got off the phone, he seemed agitated to be speaking to him; that he was moving around in his seat quite a lot; and seemed to be in and out of his pockets with his hands whilst he was speaking to him.  He had a bag with him, which he wore with the strap diagonally across his body.  The officer asked the applicant for his identification.  The applicant produced his driver’s licence from the bag.   Snr Constable Mamaril said he had a further conversation with the applicant, and he thought the applicant was trying to remove something from his left pocket, and could see what looked like a clip seal bag of some sort in the applicant’s left hand.
6. [6]
   At this stage, Snr Constable Mamaril told the applicant he was detained for a search, and activated his body worn camera.  He said the reason he did that was because he believed the applicant had possession of dangerous drugs at that time.
7. [7]
   Prior to doing that, Snr Constable Mamaril had asked the applicant if he had anything on him that he shouldn’t, and the applicant said no.  He then asked the applicant if he would mind if the officer searched him.  The applicant declined – saying no, he would rather not.   According to the applicant, it was after that, that the police officer “started saying something about the police powers where he has the right to search me”, and then told him he was detained for a search.  
8. [8]
   When he was searched, the applicant was found to have:  in his hand, a clip seal bag with 28 strips of suboxone and another clip seal bag containing a white crystal substance; in his pocket, a car key; and in his bag, a set of digital scales, a knife in a sheath and a set of knuckledusters.
9. [9]
   The respondent contends the search of the applicant (and his bag) was lawful because it was authorised by s 29 of the Police Powers and Responsibilities Act 2000 (Qld).  Section 29(1) authorises a police officer, without a warrant, to stop and detain a person, and search the person and anything in the person’s possession, if the police officer reasonably suspects any of the prescribed circumstances for searching a person without a warrant exist.  Under s 30(1)(a), the prescribed circumstances for searching a person without a warrant include that the person has something that may be an unlawful dangerous drug.
10. [10]
    So a search of the applicant’s person, and his bag, without a warrant is authorised by s 29 if the police officer reasonably suspects that the applicant has something that may be an unlawful dangerous drug.   The term “reasonably suspects” is defined in schedule 6 to the Police Powers and Responsibilities Act as meaning “suspects on grounds that are reasonable in the circumstances”, and is otherwise explained in authorities including George v Rocket (1990) 170 CLR 104 at 115-116, which is discussed in the decision of Dalton J in R v Fuentes [2012] QSC 288 at [21].
11. [11]
    In the present case, what is relied upon is the combination of the applicant holding a quantity of money in one hand, seeming agitated when speaking to the police officer, and the police officer observing the applicant holding what he thought was a clip seal bag in his left hand.
12. [12]
    In my view, those facts are sufficient to induce the suspicion in the mind of a reasonable person that the subject person has something that may be a dangerous drug.   It was put to the other officer, Constable Tighe, that it would not be unusual for a person playing the pokies to have a plastic bag with them, perhaps holding coins or cash.  He accepted that.  It was not put to Snr Constable Mamaril.  But even if the presence of a clip seal bag may also have an ordinary, innocent explanation in this context, it does not follow that the presence of such a bag does not reasonably ground a suspicion that the person with the bag may have dangerous drugs on them.   The use of clip seal bags to store, and supply, drugs, is notorious.  In my respectful view, it is reasonable for a police officer in such circumstances to suspect the person may have dangerous drugs.
13. [13]
    But the applicant contends that Snr Constable Mamaril’s evidence – in particular, that he observed what appeared to be a clip seal bag in the applicant’s left hand, before detaining him for a search – should not be accepted.  The applicant submits that if that evidence is not accepted, there is no basis to find a reasonable suspicion.
14. [14]
    In submitting that Snr Constable Mamaril’s evidence should not be accepted, the applicant emphasises that Snr Constable Mamaril only made his statement some two and a half months after the search, in circumstances where he acknowledged conducting searches of this kind were a daily event, and that there were details provided in the officer’s oral evidence at the hearing which do not appear in the written statement, calling into question his recollection:  in particular, the evidence given at the hearing that, after he got off the phone, the applicant seemed agitated to be speaking to the police officer, that he was moving around his seat, and his hands were moving in and out of his pockets.
15. [15]
    In contrast, Constable Tighe’s evidence was that when he approached the applicant and Snr Constable Mamaril – which was at the point where Snr Constable Mamaril had told the applicant he was detained – he observed the applicant to be pretty casual, sitting in his seat, inserting money into the pokie machine as they were talking to him.  Constable Tighe did observe the applicant’s left hand to be held closed (not in a fist), such that he thought he could be holding something in his hand, although wasn’t sure.  Later [after the applicant had been detained], he could see the applicant clenching his hand, and could see a little corner of the bag and could hear it crackling and knew there was something in his hand that he was attempting to conceal.
16. [16]
    The applicant, in his evidence, also denied that he was agitated, or that he had been moving his hands in and out of his pockets.  He said he was a heavy drug user (ice) at the time, and thought he was under the effects of the drug on the day in question, although did not think that would have been observable to others.  He said the drugs he had taken were wearing off and he was feeling quite lethargic and tired.  He knew he had the bag of drugs in his pocket, but said he was not concerned about that because he had refused to be searched when asked by the police officer.  According to the applicant, he didn’t think anything was going wrong, until Snr Constable Mamaril said he was being detained for a search, at which point he did become concerned the police would find the drugs on him and started to think about how he could hide the drugs, or get rid of them. 
17. [17]
    It is noteworthy that this was the time at which Constable Tighe joined Snr Constable Mamaril.   Constable Tighe described the applicant as appearing to be casually continuing to play the pokie machine.   The applicant’s own evidence is that by this time, he was agitated.  Accordingly, I do not regard Constable Tighe’s evidence, of how the applicant appeared, as casting doubt on the veracity of Snr Constable Mamaril’s evidence.
18. [18]
    The applicant said the bag of drugs was in his pocket the whole time prior to the incident where the officers were telling him to stand up and drop what was in his hand [after he had been detained, and the search had started].
19. [19]
    On balance, I accept the evidence of Snr Constable Mamaril.  It is plausible that the applicant, knowing he had a bag of drugs in his pocket, would have appeared agitated when approached and spoken to by Snr Constable Mamaril.   I reject as implausible the applicant’s evidence that he was not worried, and did not think anything was wrong, before being detained.  The evidence, that as he was speaking to the applicant, Snr Constable Mamaril observed the applicant trying to remove something from his left pocket, and observed what looked like a clip seal bag protruding from his left hand, is supported, in my view, by the camera footage which was recorded by each of the police officers.
20. [20]
    In the footage recorded by Snr Constable Mamaril, the first words that can be heard once the sound recording starts, and after the officer confirms his name and station, are something to the effect of “you didn’t drop anything on the floor just then?”.   In the footage recorded by Constable Tighe, Snr Constable Mamaril can be seen looking across the applicant, from the applicant’s right hand side, appearing to look closely at what is in the applicant’s hands – his right hand appears to hold a phone and money, and his left hand appears empty – before saying “you didn’t drop anything on the floor just then?”  Immediately after that, he hands Constable Tighe a torch, and Constable Tighe starts to look around the base of the chair the applicant is sitting on.  In my view, that is consistent with Snr Constable Mamaril’s evidence, that he believed he had seen a clip seal bag in the applicant’s hand prior to detaining him for the search.
21. [21]
    I consider Snr Constable Mamaril may be mistaken in his recollection of the applicant moving his hands (plural) in and out of his pockets, prior to detaining him, as it is difficult to see how he could have done that, whilst holding the phone and the money.   But that does not cause me to reject the other parts of Snr Constable Mamaril’s evidence.  In particular, I accept his evidence that he first observed the applicant to be holding a quantity of money in one hand, and a phone in the other; that after finishing his phone call, the applicant seemed agitated to be speaking to the police officer; that  he then transferred the money into the same hand as the phone, to retrieve his driver’s licence from the bag; and that Snr Constable Mamaril saw the applicant trying to remove something from his left pocket, and observed what looked like a clip seal bag in his left hand, prior to detaining him for a search.   Those facts are sufficient in my view to support a reasonable suspicion that the applicant had something that may be a dangerous drug.
22. [22]
    It follows that I find the search of the applicant, and of his bag, was lawful.
23. [23]
    I turn now to the search of the car.   The challenge to the lawfulness of the search of the car was put on two bases:  first, that if the court found the search of the applicant’s person was unlawful, it would follow that the subsequent search of the car was unlawful also (as the key that lead to that search was found in the applicant’s pocket); and, second, that in any event the search of the car was unlawful because there was no warrant to do so, and the applicant did not freely and voluntarily consent to the search.
24. [24]
    It is only necessary to address the second argument.  To do that, it is necessary to outline more of the events that occurred, after the applicant was detained for a search. 
25. [25]
    After Snr Constable Mamaril handed Constable Tighe the torch, Constable Tighe started to search around the base of the chair the applicant was sitting on.  Snr Constable Mamaril continued to speak to the applicant, asking him to place his belongings “just on here” (gesturing to the pokie machine”) and saying to him “you understand you’re detained at the moment and not free to move around?”  He asks the applicant to remove his bag from his shoulder, as officer Tighe is going to search it.  The applicant complies.  There is an exchange between the applicant and Constable Tighe about the bag, and whether it belongs to the applicant.   Snr Constable Mamaril can be heard to ask the applicant to stand up, a number of times (starting at about 1:42 in the Tighe footage).   Constable Tighe, who is on the left of the applicant, can be heard to say “it’s in his hands”, and then, to the applicant, “pull it out of your hand, man, just pull it out of your hand, don’t cause a big scene, just drop it now…”.  There is a physical interaction between the police officers and the applicant, as they try to get him to stand up, and to release whatever is in his hand.  What can be observed, watching the Tighe footage (at about 1:52) is that the applicant’s left hand reluctantly moves from between his legs, with the clip seal bag in it, as the police officers are telling him to stand up, and then to pull it out of his hand and then drop it.   It is open to infer that the applicant had tried to hide the bag of drugs there, before being told to stand up etc.  This is also  consistent with Snr Constable Mamaril’s oral evidence, about seeing something that looked like a clip seal bag in the applicant’s left hand, before detaining him, then seeing the applicant’s left hand empty, before asking him if he’d dropped anything on the floor.
26. [26]
    At this point, the applicant is handcuffed.  Constable Tighe says “we’re going to handcuff you” and Snr Constable Mamaril says to him “When you’re asked to do something, dude, okay, just do it.  Obviously we can see it in your hand.  Okay?  Don’t obstruct us whilst we do the search, okay?  Or you’ll be charged with obstruct police, you understand?” (at about 2.18 of the Tighe recording, and at about 2:20 of the Mamaril recording).   Constable Tighe then says “you just need to relax.  You treat us well, and we’ll treat you well, alright?” (at about 2.25 of the Tighe recording). 
27. [27]
    The search of the applicant and his bag continues for a time next to the pokie machine.  At the beginning of the process, Snr Constable Mamaril advises the applicant of his rights and cautions him.  The exchanges between the officers and the applicant in the course of the search are calm and orderly.  At about 6.30 on the Tighe recording, Constable Tighe moves off to speak to another person.    At about 8:45 on the Mamaril recording, the officers decide to move outside to the smoking area with the applicant.  Just before they do that, Snr Constable Mamaril asks the applicant again if he understood the cautions he was given before.
28. [28]
    Snr Constable Mamaril tells the applicant he will take the cuffs off him, which he then does once they are outside.  While he is taking the cuffs off the applicant, Snr Constable Mamaril says to the applicant “you understand you’re still detailed at the moment?” and “if you obstruct us in any way, you’ll be arrested for obstruct police” (at about 9.22 on the Mamaril recording).  The applicant is invited to sit down while the officer goes through the various property located in the search.
29. [29]
    At some stage, Constable Tighe went out to the car park, with the key which was found in the applicant’s pocket, to see which car it was for.  The key unlocked the white commodore with the paper number plates.   Constable Tighe returned and said to the applicant something to the effect of “this key unlocks a white commodore out there”, and confirms with the applicant that the key was in his pocket.  He then says to the applicant “you’ll come over with us and we’ll go and unlock the car in your presence”.   The two police officers and the applicant subsequently walk out to the car park.  It is not entirely clear how long it was before they walked out to the car park, although I note that Mamaril’s first recording stops at 15:16 (when they are still in the smoking area), which is about six minutes after the hand cuffs were removed.
30. [30]
    There is a second recording made by Constable Tighe, which begins when he is standing next to the white commodore, and can be seen putting on gloves.  Constable Tighe asks the applicant “so the property in your, in the car of yours is what?”, and the applicant responds.  Then Constable Tighe says (to the other officer) “and obviously the keys were in his possession when we…” and Snr Constable Mamaril says “in his pocket”.  Constable Tighe then says to the applicant:  “So you’re happy for us to just go in there and have a look?  Make sure it’s all good ?  Yeah?”  And the applicant responds “Yeah” or “Yep”.
31. [31]
    Constable Tighe proceeds to search the car and a number of things are found in it, including a soft sunglasses bag, containing two more clip seal bags, each containing crystalline substance.
32. [32]
    Constable Tighe confirmed that if the applicant had declined to provide consent to search the car, in his mind there was sufficient basis to obtain a warrant, and he understood that in the absence of the applicant’s consent he would need to obtain a warrant to search the car.  The officer said if the applicant had said “no”, when he asked him if he was happy for them to go and look in the car, he would have gone through the process of obtaining a warrant; but that if he consented to the search, they “wouldn’t be delaying time and using up resources if he was happy for the search to be conducted in front of him”.
33. [33]
    In his evidence, the applicant said he understood, when the police officers said they were going to take him out to the car to unlock it in his presence that “there was only one reason we were going out to the car.  For them to search the vehicle”. 
34. [34]
    The applicant did not recall saying “yeah” when asked if he was happy for them to go and have a look [in the car], but accepted, having listened to the recording, that he did.  But he said he “didn’t think they were actually asking me to search it.  It was more a, ‘We’re just going to have a look – quick look in your car, yeah’.”
35. [35]
    The applicant said he did not understand the police to be asking for his permission to look in the car, and that if he had understood that was what they were asking for, he would have declined it “because it wasn’t my vehicle, so I wasn’t aware of the contents of what was – anything that was in the car, so…”, and added that he had already refused a search inside the pokie area.   He later reiterated that he knew he could refuse a search, of his person, and also knew that he could refuse a search of the car.
36. [36]
    When asked, in his evidence in chief, if the officers’ words from earlier (suggesting that he cooperate and not obstruct them) were playing on his mind at this time, the applicant said “to a little bit of a degree, yeah.  Like, it was more of a ‘Just go easy and we’ll be easy on you’ sort of thing.”   He agreed he was at no stage threatened.  And when it was put to him, in cross-examination, that at no stage did he feel like he was induced or coerced to agree to have the vehicle searched, the applicant said “Not particularly.  I just thought just go along with it and as – as he said, just ‘You be easy on us; we’ll be easy on you …”.
37. [37]
    It is not disputed that the police officers had no statutory power to search the car without a warrant – s 31 of the Police Powers and Responsibilities Act did not apply, as the applicant was not an occupant of the car at the time.  It was also not disputed that the search was lawful, if the applicant consented to it.
38. [38]
    For the applicant it is submitted that having regard to the circumstances overall it is clear the police were not really asking for consent at all, they were intent on searching the car; and that his ultimate agreement, to the officer’s leading question, should be regarded as the product of coercion.  At best, it was submitted, the applicant’s agreement should be taken as a willingness to cooperate in what he believed the officers were going to do regardless.
39. [39]
    I do not accept that the applicant was coerced in any way, or that his will was overborne by the actions of the police officers.   In so far as reliance was placed on the comments made by Snr Constable Mamaril, at the outset of the search next to the pokie machine, I find those comments were made in the context of the physical interaction between the police officers and the applicant, trying to get him to stand up, and then trying to get him to drop what was in his hand.    The interactions and exchanges between the police officers and the applicant which follow this are calm and orderly, and quite a deal of time passes, before he is asked if he is happy for the police officer to search the car.    I do not accept that it is reasonable to infer that these earlier comments would have led the applicant to believe he had to agree to the search of the car.  Nor do I accept that the fact he continued to be detained by the police would have had this effect.^[1]   His own evidence does not support that.    He responded to a leading question in his evidence in chief, that the earlier words were playing on his mind “to a little bit of a degree”; but then in cross-examination accepted that he did “not particularly” feel he was induced or coerced to agree to the search – he just thought just go along with it.
40. [40]
    The applicant clearly knew he could refuse the search of the car.  This also supports the finding that his consent was voluntarily given (although, as the authorities establish, even if a person is mistaken about their legal rights, that does not necessarily compel a conclusion that their consent was not voluntarily given^[2]).
41. [41]
    The applicant’s reason for not refusing the search was an unconvincing one – that he did not believe the police were asking to search the car, as opposed to having a look inside it.  There is no difference between those two things.
42. [42]
    I also reject the applicant’s submission that it should be inferred from the casual language used by Constable Tighe, together with the surrounding circumstances (approaching the car, with the key found in the applicant’s pocket, and the officer putting on gloves as he was asking) that no request to search the car was actually being made; but rather the police were telling the applicant what they were going to do (regardless of his response).   In R v Bossley, the police officer was stretching out his hand to take Mr Bossley’s bag at the same time as the request was made, “Do you mind if I have a look?”  That did not lead to a conclusion that no proper consent was given.  The sworn evidence of Constable Tighe is that, had the applicant refused, he would have gone through the process of obtaining a warrant.
43. [43]
    The question of fact is whether the applicant willingly and voluntarily consented to the police searching the car.  The words used to demonstrate that consent do not have to be formal, provided that it can be shown the person’s will was not overborne, and that they agreed.^[3]  The words which were used here are, in my view, adequate to convey the request, and the agreement.  I am not persuaded that the applicant was coerced or that his will was overborne, when he responded affirmatively to Constable Tighe’s request, “So you’re happy for us to just go in there and have a look make sure it’s all good?”
44. [44]
    For those reasons, I find the searches of both the applicant’s person, including his bag, and the car, were lawful and, accordingly, refuse the application to exclude the evidence found in the searches.