R v Tonon[2021] QSCPR 14

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant is charged on indictment with one count possession of methylamphetamine (with a circumstance of aggravation) on 20 January 2019. The prosecution of the indictment follows the discovery of the methylamphetamine in a vehicle registered to the applicant in which the applicant and another were detained. The vehicle was searched by police without a warrant.
2. [2]
   The applicant seeks the exclusion of the evidence seized during the search of the motor vehicle in which the dangerous drugs were found. It is alleged that the search of the applicant’s car without a warrant was in breach of the requirements of the Police Powers and Responsibilities Act 2000 (Qld), and without the consent of the applicant, the search was unlawful.

Facts

3. [3]
   On 20 January 2019, Detective Francis intercepted telephone calls of Tamara Lee, who was subject to a covert police operation. She was suspected of trafficking methylamphetamine in and about Townsville. It was inferred from a telephone call made at 1:13pm that Ms Lee was intending to meet a supplier at the Frosty Mango, a tourist attraction about 40-45 minutes’ drive to the north of Townsville on the Bruce Highway.^[1]
4. [4]
   4 police officers attended the location at 2:15pm and found Ms Lee in the front passenger seat of a motor vehicle, with the applicant in the driver’s seat. The motor vehicle in question was a red Mazda which was registered to the applicant. Ms Lee was arrested in relation to the trafficking of dangerous drugs and the applicant was detained for the purpose of conducting a search of the vehicle.
5. [5]
   During the search, a cereal box was located. Inside that cereal box was two cryovac-sealed plastic bags that contained a total weight of 56.113 gram of white crystal substance. It was later revealed that there were 42.533 grams of pure methylamphetamine. Each bag had contained about 28 grams of the substance.
6. [6]
   Police also discovered a brown paper bag with a sum of cash amounting to $13,850. This cash had been declared by Ms Lee at the beginning of the search. Police also located two mobile telephones belonging to the applicant and Ms Lee. At the conclusion of the search, the applicant was arrested and charged.

Grounds of the Application

7. [7]
   Section 31(1) of the Police Powers and Responsibilities Act 2000 (Qld) (“PPRA”) provides

3. “31
   Searching vehicles without warrant

3. (1)
   A police officer who reasonably suspects any of the prescribed circumstances for searching a vehicle without a warrant exist may, without warrant, do any of the following—

3. (a)
   stop a vehicle;

3. (b)
   detain a vehicle and the occupants of the vehicle;

3. (c)
   search a vehicle and anything in it for anything relevant to the circumstances for which the vehicle and its occupants are detained.

3. …”^[2]

8. [8]
   Section 32 of the PPRA sets out the prescribed circumstances for searching a vehicle without warrant. They include that “……there is something in the vehicle that …may be an unlawful dangerous drug”.^[3]
9. [9]
   There are two questions that arise in the decision regarding the lawfulness of the search. First, were the applicant and Ms Lee occupants of the vehicle? Second, did Detective Francis, at the time of executing the search, have a reasonable suspicion that there were prescribed circumstances under s 32 that authorised the search – namely s 32(1)(c) unlawful dangerous drugs.

Occupants of the Vehicle

10. [10]
    There are 3 separate powers conferred under section 31, (a) to stop a vehicle, (b) to detain a vehicle and the occupants of the vehicle and (c) search a vehicle and anything in if for anything relevant to the circumstances in which the vehicle and its occupants are detained.
11. [11]
    As acknowledged by Jackson J in R v Keen^[4], these three powers do not have to be exercised together, thus occupants of a stationary vehicle can be detained. Section 31(1)(c) which confers the power to search a vehicle expressly refers to the vehicle and occupants being detained.
12. [12]
    Jackson J stated at [29]:

The ordinary meaning of the expression “occupants of a vehicle” extends to all those in the vehicle, namely the driver and any passengers. However, the scope of the expression becomes more difficult when the person or persons are no longer in the vehicle. For example, the persons in a stationary vehicle may get out, either voluntarily or under instruction from the police officer who has approached the vehicle and detained them for the purpose of exercising the power of search. If they were in the vehicle when the police officer approached the vehicle, in my view, those persons are occupants of the vehicle under s 31.^[5]

13. [13]
    In applying the above statement, Ms Lee and the applicant were in fact occupants of the vehicle, as they were persons in a stationary vehicle who were instructed to exit the vehicle by approaching officers.

Reasonable Suspicion

14. [14]
    Schedule 6 of the PPRA defines reasonably suspects as suspects on grounds that are reasonable in the circumstances.^[6]
15. [15]
    The judgement of the High Court in George v Rockett  is relevant here;

“When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person”^[7]

16. [16]
    Henry J in R v Jaudzems also refers to George v Rockett stating

“This distinction is consistent with the well-established principle regarding reasonable suspicion that there must exist some factual basis to reasonably ground the suspicion, but it is unnecessary that there exist proof of the fact reasonably suspected’ when finding a reasonable suspicion existed based of ‘the existence of apparently reliable information”^[8]

17. [17]
    Detective Francis’ suspicion that there were unlawful drugs in the vehicle registered to the applicant was based on a combination of factors:

Months of investigation on Ms Lee in the duration of the covert police operation;^[9]

The three telephone calls intercepted and listened to by Detective Francis on 20^th January 2019;^[10]

The reference that Ms Lee ‘had got nothing’ and the references to her needing to go up to town or up north later during the telephone call at 10:57am;^[11]

A text exchange between Ms Lee and the applicant dated 22 May 2018;^[12]

A vehicle registration search of vehicles registered to the applicant prior to embarking to the Frosty Mango;^[13]

Observations made by Detective Sergeant Golding on arrival to the Frosty Mango that two female persons were seated in a Red Mazda registered to the applicant;^[14] and

The arrest of Ms Lee by Detective Senior Constable Hilton.^[15]

18. [18]
    In respect to a question raised by the defence counsel as to why he didn’t arrest the applicant rather than search the vehicle. Detective Francis gave evidence to the effect that he did not have sufficient enough suspicion to arrest the applicant for a drug offence prior to executing a search of the vehicle.^[16]
19. [19]
    Detective Francis also gave evidence to the effect that a search warrant was not ordered prior to attending the Frosty Mango as he did not have a reasonable suspicion about the identity of the car at the location. He did say that he had a ‘hunch’ that the applicant was going to be at the scene.^[17]
20. [20]
    In this context, an oft cited passage by Kitto J is relevant:

“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’”^[18]

21. [21]
    There had only been one exchange between Ms Lee, the subject of the investigation, and the applicant on 22 May 2018, with no further known contact. The intercepted telephone calls of Ms Lee did not reveal as to who she was to be meeting at the Frosty Mango. As such, when the police officers left Townsville for the Frosty Mango, they were not possessed of evidence sufficient to provide reasonable grounds to order a search warrant on the Applicant’s car.^[19] It wasn’t until the moment in time when the events played out in front of Detective Francis, that is the identification of the Applicant’s car at the Frosty Mango, the information provided that there were two women seated in the Applicant’s car and the identification and subsequent arrest of Ms Lee, that the ‘mere idle wondering’ crystallised into something more. I will return to this. But before going on, I will record that I was impressed by the evidence of Detective Francis. He appeared honest and straightforward, prepared to appropriate concession.
22. [22]
    In his submissions Mr Greggery QC advanced two arguments.^[20] The first was that Detective Francis did not hold the requisite suspicions to detain the applicant and to search the motor vehicle. This argument proceeded upon the evidence given by Detective Francis in cross-examination to the effect that he did not have sufficient grounds for a suspicion that a supply had occurred.^[21] I shall term this as the ‘Supply argument’. The second, a “more nuanced one”^[22] assumed that by the time Detective Francis and the other officers left Townsville for the Frosty Mango, he had sufficient information to form a reasonable suspicion and sufficient time to apply for a search warrant under s 150 and s 151.^[23] This, what I term ‘delay’ argument was advanced orally^[24] and the applicant’s “addendum” outline at [6], [7] and [8]. I will address the ‘supply’ argument first, and the ‘delay’ argument second.

Supply

23. [23]
    Supply is given an extended definition in section 4A of the Drugs Misuse Act 1986 (Qld) which provides:

supply—

3. (a)
   for part 5A—see section 43A; or

3. (b)
   otherwise, means—

3. (i)
   give, distribute, sell, administer, transport or supply; or

3. (ii)
   offering to do any act specified in subparagraph (i); or

3. (iii)
   doing or offering to do any act preparatory to, in furtherance of, or for the purpose of, any act specified in subparagraph (i).^[25]

24. [24]
    Mr Greggery’s argument arose on the sidewind in cross examination thus raising a red herring. It was put to Detective Francis by Mr Greggery QC that he did not hold a reasonable enough suspicion about a supply of a dangerous drug to arrest her.^[26] The argument advanced by Mr Greggery QC was that if a reasonable suspicion had existed to search the car for unlawful drugs that same suspicion would be equally sufficient to find that a commission of the offence of supply (taking into account the extended definition) or the lesser offence of possession, had occurred.^[27]
25. [25]
    The issue is really a sidewind. My understanding of Detective Francis’ evidence upon the matter is that he was expressing a doubt that he had sufficient evidence until the search of the motor vehicle to suspect that a supply of drugs had been executed. He was not intending to suggest that he did not have sufficient grounds to suspect the presence of drugs in the motor vehicle. As I find it, Detective Francis has sufficient grounds for a reasonable suspicion that unlawful drugs^[28] were contained in the vehicle. Based on the evidence, Detective Francis had the requisite suspicion to lawfully search the applicant’s vehicle.^[29]

Delay

26. [26]
    Mr Greggery QC’s second argument was that when  police officers have  a reasonable suspicion about the presence of drugs at a particular place in advance of the search and where there is sufficient time to obtain a warrant, the operate of section 31 of the PPRA does not arise, rather the obligation to obtain a warrant arises.^[30] Mr Greggery QC’s submission is an interesting question of law, however when the facts are as I find them, it does not arise.
27. [27]
    Detective Francis gave evidence to the effect that there was an intention to close the operation on Ms Lee, subsequently arresting Ms Lee and searching her vehicle.^[31] Detective Francis further gave evidence that he had not applied for a search warrant as there was a possibility Ms Lee was meeting someone at the Frosty Mango, he was not aware of what vehicle was going to be at the scene, and thus did not know what place to nominate in the search warrant.^[32]
28. [28]
    It was then put to Detective Francis that section 800 of the PPRA could have been enlivened where he had access to an on-call magistrate’s contact number and it was a matter of urgency.^[33] As emphasised on a number of occasions, Detective Francis’ ‘mere idle wondering’ did not crystallise until such time where the two women were identified and Ms Lee was arrested, thus limiting the time available to contact a magistrate and obtain such a warrant.
29. [29]
    Jackson J in R v Keen emphasised that section 31 operates in circumstances where the exercise of the power to obtain a search warrant may be inapt because there is not enough time to do before the vehicle and things suspected to be in it may be moved.^[34]
30. [30]
    The whole of the operation from intercepting the call at 1:13pm, leaving for the Frosty Mango at 1:40pm, arriving at the Frosty Mango at 2:27pm and the arrest of Ms Lee and subsequent search at 2:40pm quickly unfolded. Taking into consideration the fact that 40-45 minutes of this operation was the drive to the Frosty Mango, and that a reasonable basis for a search warrant did not arise in Detective Francis’ view until such time he arrived at the Frosty Mango, there was insufficient time for Detective Francis to obtain the warrant. On the evidence as I find it there was insufficient time to obtain a search warrant. 
31. [31]
    Therefore, after careful consideration of the evidence, and submissions put forward by Mr Greggery QC, in my mind the power conferred by section 31(1)(c) of the PPRA was lawfully executed, and the search was lawful.
32. [32]
    Should I be wrong, and the search is in fact unlawful, I will give consideration to the discretion discussed in Bunning v Cross.^[35]

The Discretion to exclude unlawfully obtained evidence

33. [33]
    It is further submitted by the Applicant that should the search be considered unlawful that the Bunning v Cross^[36] discretion should not be applied.
34. [34]
    The judicial discretion to either include or exclude unlawfully obtained discretion was first decided in R v Ireland, when the High Court stated:

Whenever such unlawfulness or unfairness appears, the Judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand is the public interest and the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.^[37]

35. [35]
    Bunning v Cross built on the above at 74:

“What Ireland involves is no simple question of ensuring fairness to an accused, but instead the weighing against each other of two competing requirements of public policy thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law”^[38]

36. [36]
    Applegarth J in R v Versac summarised the factors relevant to the exercise of discretion set out by Stephen and Aickin JJ in Bunning v Cross which includes:

    1. whether the unlawfulness was a deliberate or reckless disregard of the law, as distinct from a mere oversight or accidental non-compliance with the law;
    2. the cogency of the evidence and whether the nature of the illegality affects the cogency of the evidence so obtained;
    3. the importance of the evidence in the proceeding;
    4. the nature and seriousness of the offence;
    5. the nature of the unlawful conduct;
    6. whether such conduct is encouraged or tolerated by those in higher authority in the police force; and
    7. how easy it would have been to comply with the law. .^[39]

Discretionary Factors

Deliberate or Reckless Disregard for the law 

37. [37]
    Applegarth J in R v Versac cited the definition given by Adams J in DPP v Nicholls: ‘A serious disregard of the relevant procedures amounting to a deliberate undertaking of the risk that the rights of a suspect will be substantially prejudiced.’^[40]
38. [38]
    His Honour also cited James J in DPP v Leonard who expressed the view that a police officer who “failed to give any thought to whether there was a risk of a search being illegal, in circumstances where, if any thought had been given, it would have been obvious that there was such a risk” would have been “reckless.”^[41]
39. [39]
    Detective Francis’ evidence suggested that in conducting the search, he was operating on the basis that the suspicion he held was reasonable within section 31 of the PPRA. Detective Francis did not conduct the search of the applicant’s vehicle until Ms Lee was arrested and his belief that his suspicion that there were unlawful drugs in the vehicle was reasonable was enlivened.
40. [40]
    I am not satisfied there was a deliberate or reckless disregard of the law.

Cogency of Evidence

41. [41]
    The cogency of the evidence found in an unlawful way is a factor in favour of the admission of the evidence. Unless of which the unlawful conduct arose in conduct that is deliberate nor reckless. Stephen and Aickin JJ in Bunning v Cross observed at 79:

To treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless, may serve to foster the quite erroneous view that if such evidence be but damning enough that will of itself suffice to atone for the illegality involved in procuring it. For this reason cogency should, generally, be allowed to play no part in the exercise of discretion where the illegality involved in procuring it is intentional or reckless. To this there will no doubt be exceptions: for example where the evidence is both vital to conviction and is of a perishable or evanescent nature, so that if there by any delay in securing it, it will have ceased to exist.^[42]

42. [42]
    The unlawful dangerous drugs found in the vehicle are cogent evidence of the commission of the offence with which the Applicant is charged. As is the case in R v Versac the unlawful conduct in question does not involve a procedure, compliance with which is, designed to enhance the reliability of the evidence.^[43]

Importance of Evidence

43. [43]
    There is only a single count on the indictment in which the Applicant is charged; the count being possession of methylamphetamine in excess of 2.0 grams.
44. [44]
    This count pertains to the quantity of methylamphetamine found in the vehicle belonging to the applicant that was searched by Detective Francis. Thus the importance of this evidence for successful prosecution is a factor favouring admission.

Nature and Seriousness of Offence

45. [45]
    It is well acknowledged that the more serious the offence, the more likely it is that the public interest in the administration of justice requires the admission of the unlawfully obtained evidence.
46. [46]
    In the circumstance at hand, the quantity of the unlawful dangerous drug apprehended in the applicant’s vehicle was over 21 times the amount prescribed in schedule 3 of the Drugs Misuse Regulation 1987(Qld) ^[44] with 42.553 grams of pure methylamphetamine being found. Drug offending is serious. This is a serious example of possession.

Nature of the Unlawful Conduct

47. [47]
    Whilst the alleged unlawful conduct did not amount to a deprivation of a fundamental right, such as the right to silence^[45], without consent from the applicant, the search of the applicant’s vehicle involved an invasion of property.^[46]
48. [48]
    Thus the question to be asked was raised by Holmes J (as her Honour Holmes CJ then was) in R v Christensen; is the purported use of a power which entailed the invasion of privacy or property of a citizen conducted “with so little regard for what was actually permitted by the statutory provisions, is an error of such proportions as to tilt the balance of public interest against the receipt of evidence so obtained?”^[47]
49. [49]
    If contrary to my finding his conduct was unlawful, I am not of the opinion that Detective Francis was reckless.

Whether such conduct is encourage or tolerated by those in higher authority in the police force

50. [50]
    There is no evidence suggesting encouragement or tolerance.

How easy it would have been to comply with the law

51. [51]
    This does not arise because on my finding there was insufficient time to apply for a warrant once all evidence relevant to a reasonable suspicion were known.

Conclusion

52. [52]
    The applicant’s arguments do not persuade me.
53. [53]
    I find the search was lawful. If I am wrong I would exercise a discretion to admit the evidence.
54. [54]
    The application should be refused.