R v Wassmuth[2021] QSCPR 15

SUPREME COURT OF QUEENSLAND

1. [1]
   NORTH J:  The applicant is charged under an indictment before the court with a number of serious drug offences. She’s charged, among other things, with trafficking in methylamphetamine, possession of that dangerous drug and there are a number of counts of supply of methylamphetamine.  Her application is to exclude certain evidence obtained by police as a result of two separate search and seizures.  One occurred on the 4th of October 2018 and her application concerns the seizure and search of an Apple iPhone belonging to her.  That was done by police who executed the search. 
2. [2]
   The second part of the application concerns evidence obtained on the 19^th of November 2018 when police stopped a motor vehicle being driven by the applicant on the highway and searched the motor vehicle.  They seized a mobile phone owned or possessed by the applicant and a search of the vehicle found a package containing a large quantity of methylamphetamine.  In fact, as I understand the facts, to be about 188.655 grams of that drug. 
3. [3]
   I propose to deal, firstly, with the application so far as it concerns the search on 4 October 2018 at an address at Hermit Park.  Acting under a search warrant, police officers executed a search at 6 Roberts Street, Hermit Park on 4 October 2018.  The two officers gave evidence before me of the circumstances of the search.  They were officers Rinaudo and Beeton.  The applicant was not the subject of the search warrant.  She was not named in it, however her sister was.  Information available to the police led them to believe that she had some association with the address 6 Roberts Street and, it appears from the evidence, that she resided there.  The applicant did not live at that address.  She was not, as I said, named in the search warrant.  She happened to be on premises when the police executed the search warrant.  It’s a matter of record, so far as I’m aware or the material reveals, no drugs were found upon her and nor were any other items indicative of drug use or drug offending, save for what I’m about to mention. 
4. [4]
   During the course of the search, the applicant was holding and using an Apple iPhone that belonged to her.  At some point, she put it down.  A little later, Officer Beeton saw the phone and examined it.  It was still operating and had not been turned off or shut down and he was able to scroll through.  According to Officer Beeton, he found on the phone messages that were suggestive of drug transactions.  That is the basis, as I understand it, of some of the counts of supply of dangerous drugs that are on the indictment.  Now, the search was conducted pursuant to a search warrant.  That is exhibit 8 in the proceedings before me.  The unredacted information can be found in the request, which is exhibit 9 contains the information submitted to the magistrate who issued the warrant.  Officer Rinaudo was the officer who applied for the search warrant and obtained it. 
5. [5]
   A broad point made by Mr Collins on behalf of the applicant is that the warrant is defective and unlawful because Officer Rinaudo did not have grounds for a reasonable suspicion that the offending that the warrant refers to was occurring on the premises.  Officer Rinaudo was cross-examined before me.  He accepted, under cross-examination, that he had no evidence or information that drugs were on the premises nor did he have evidence or information that could identify sales of drugs from the premises.  The evidence that formed the basis of his suspicion that the person named in the warrant might be trafficking in dangerous drugs or might have possession of dangerous drugs came from the following. 
6. [6]
   I’ve already mentioned that the applicant’s sister was an occupant of the premises.  She is the person identified in the warrant as the person who it was alleged was carrying on the business of trafficking in the drug methylamphetamine and might have possession of the drug methylamphetamine.  It could be said in general terms that applicant’s sister who was named in the warrant was known to police.  Information available to Officer Rinaudo, which was hearsay information from the QPRIME information database conducted by police, was that the applicant’s sister had, at times past, come to the attention of the police in connection with drug offending. 
7. [7]
   The other evidence connecting the premises with this offending arose out of the circumstance that the night before a motor vehicle occupied by four other people – neither the applicant nor her sister – had been stopped and searched by police and that a large sum of money had been found in the motor vehicle which was suspected to have been either the proceeds of a drug transaction or money intended to be used in a drug transaction.  According to the application for the warrant that was placed before the magistrate, Officer Rinaudo informed the magistrate that the vehicle in question had been seen leaving 6 Roberts Street at Hermit Park on the night before.  That is, on the night of the 3rd of October, the night before the execution of the warrant. 
8. [8]
   So, in summary, the evidence that Officer Rinaudo relied upon, as revealed by his evidence in cross-examination, was that the applicant’s sister was known to police as having had some history of coming to their attention in relation to drug offending, that she was an occupant of the house and that a motor vehicle as described had been seen leaving those premises the evening before and that a search of the motor vehicle had found a large sum of money that was believed to have been the proceeds of a drug-related transaction.  It was on the basis of that information that Officer Rinaudo came to the suspicion, as he said, that a search of the house would be likely to uncover evidence of trafficking in dangerous drugs and possession of dangerous drugs by the applicant’s sister.  In fact, the evidence provided to the magistrate that formed the basis for the issuing of the warrant was slightly inaccurate but in important terms. 
9. [9]
   As recorded by police in the QPRIME information database, the motor vehicle was not recorded or reported as having been seen leaving the premises in question.  What was recorded was to the effect that the motor vehicle had been seen leaving the vicinity of the premises.  It was on this basis that Mr Collins, of counsel, for the applicant, submitted that there was an insufficient ground in the circumstances for Officer Rinaudo’s belief to be a reasonable suspicion as required.  I might say in passing that there was some information available to Officer Rinaudo – and this was pointed out to me in submissions by Mr Hancock, who appeared for the respondent – that there was information that one of the occupants of the vehicle may have spent some time at the premises the night before.  But in my view, that is a slight straw in the wind that doesn’t alter the situation.
10. [10]
    It will be recalled, as Mr Collins pointed out in his submissions, that in order to form a suspicion one must have something that is more than “an idle wondering.” Whether a reasonable suspicion exists involves a feeling of actual apprehension amounting to a slight opinion without sufficient evidence.  The circumstance that all that was known was that the vehicle had been in the vicinity of the premises the night before, and that a current occupant of the premises might have, in the past, have been involved in offending with respect to drugs, does not form, in my view, any basis for a reasonable suspicion that the trafficking in methylamphetamine or the possession of methylamphetamine was being conducted at the premises. 
11. [11]
    If this were the case, then any person’s home could be the subject of a search warrant merely on the basis that that person had, sometime in the past, come to the attention of police, and that an active offender had circumstantially passed by in a motor vehicle the residence in question.  In my view, the search warrant was not properly founded.  The officer who applied for the warrant did not have a reasonable suspicion for that offending.  The search was, therefore, in my view, unlawful. 
12. [12]
    Turning to the events of the 19th of November 2018.  Some time before the morning of the 19th of November 2018, police received some information that led them to believe that the applicant, in company with another woman, was driving north on the highway towards Townsville. 
13. [13]
    The information that police had led them to believe that there may be a substantial quantity of drugs in the motor vehicle.  There was a police briefing at about 8 am in the morning.  Two officers, Officers Oldfield and Anderson, both of whom who gave evidence before me, were involved in the briefing.  And they were tasked with the duty of intercepting the vehicle.  The evidence from Officer Anderson who seems to have been the lead in the team of police officers was that he had sufficient time to formulate a “tactical intercept plan.”  This involved intercepting the motor vehicle as it was proceeding north towards Townsville at or near Alligator Creek, which is just south of Townsville on the Bruce Highway.  Acting without obtaining a warrant the officers stopped the motor vehicle, detained the two women and searched the motor vehicle.
14. [14]
    When in evidence, under cross-examination, it was suggested to Officer Anderson that he should have taken the time to obtain a search warrant, the response made by Officer Anderson in reply was that a search warrant was not required.  He was relying upon section 31 of the Police Powers and Responsibilities Act, which does, on its face, authorise police to stop and detain occupants and search vehicles.  But that power is limited and in that regard, I have regard to the observations of Justice Jackson in R v Keen [2016] 2 Qd R 1, particularly at paragraphs [34] and [35], although the surrounding paragraphs are relevant and informative.  As pointed out by his Honour, ordinarily, section 150 of the Police Powers and Responsibilities Act would require a search warrant to be applied for and obtained before a motor vehicle could be searched because a motor vehicle is a place, within the meaning of that term, as used, relevantly, in the Act at section 150. 
15. [15]
    The operation of section 31 is to be reserved for circumstances when it is not apt to obtain a warrant, usually, because of the exigencies of some emergency or a circumstance is unfolding quickly that require action by police to preserve evidence, when there is not time to apply for a warrant.  Here, there was ample time to apply for a warrant; at least three hours between the briefing and the time the police put into play the tactical intercept plan.  It was not suggested by either of the police officers who gave evidence that there was not time to obtain a warrant.  In fact, the tenor of their evidence was there was ample time.  Rather dogmatically, it seemed to me, Officer Anderson insisted, when cross-examined about these matters, to assert that a warrant was not required. His evidence^[1] in this respect, is informative. 
16. [16]
    In the circumstances where there was ample time to apply for a warrant, following the reasoning of Justice Jackson,^[2] I hold that the search was not authorised by the Act and was unlawful. 
17. [17]
    Submissions were made in written outlines and also orally this morning upon the issue of how I might exercise my discretion in relation to the admissibility of the evidence obtained in the circumstances that I’ve described.  In other words, it falls for me to consider what is conventionally termed as the Bunning v Cross discretion. 
18. [18]
    One of the judgments that is helpful when considering the exercise of the discretion is that of Justice Applegarth in R v Versac [2013] QSC 46, particularly at paragraphs [5] and following.  Not because anything his Honour has said was original or ground-breaking, but to do justice to his Honour he has fairly comprehensively essayed the factors that might be weighed in the balance from time to time and to consider them.  A statement of the factors or a number of the leading factors can be seen in paragraph [6] of his Honour’s reasons.  There can be no doubt that in the context of the charges before the court in the indictment, trafficking in dangerous drugs such as methylamphetamine is a serious offence.  So are possession of methylamphetamine in the large amount that I’ve mentioned, as is the supplying of that dangerous drug.  Little needs to be said about that.  That issue is well known and goes without saying. 
19. [19]
    The evidence of the large quantity of methylamphetamine uncovered in the vehicle after a fairly extensive search, of course, is apt to be cogent evidence in this context.  It’s important evidence, I would anticipate, at any trial on the counts of trafficking and possession.  So the nature of the offending and the seriousness of the offending and the cogency and importance of the evidence to the prosecution case are important factors and strongly suggest that a discretion might be exercised to admit into evidence the results of the searches, notwithstanding the rulings that I’ve made. 
20. [20]
    However, there are some other features of this case that are of concern.  It would have been very easy and straightforward for Officers Oldfield and Anderson to have obtained a search warrant.  Officer Anderson’s view of things, as I’ve already said, appeared to me to be rather dogmatic in his insistence that a warrant was not required.  He had time to reflect, to perhaps seek advice from other or more experienced police officers and there was plenty of time to obtain a warrant without inconvenience to the planning of his tactical intercept.  There is a feature, in my view, of, therefore, highhanded and reckless conduct on the part of that officer in not stopping to reflect.  After all, the need for a search warrant is not a novel preposition nor is it a circumstance unknown to police.  In fact, it would be at the forefront of an experienced police officer’s mind, confronted with a circumstance such as this, to reflect and perhaps make sure that you had your warrant in place just in case. 
21. [21]
    With respect to the house search on the 4th of October 2018, the matter comes down to this. The obtaining of the search warrant occurred in a circumstance where inaccurate information was given to the magistrate.  The application was based on a flimsy circumstance at best, even if there had been evidence that one of the occupants of the car had, at some stage, been present in the house.  There was no foundation for a suspicion.  In my view, the officers were slipshod in not stopping to consider, “Is the evidence sufficient?”  In my view, in this case I should exercise my discretion to exclude the evidence. 
22. [22]
    For the reasons I have given, therefore, there will be an order that the evidence of the search of the phone and the contents of the phone obtained under the search warrant executed on the 4th of October 2018 be excluded from evidence at the trial of the defendant.  There will be an order that the evidence of the search of the motor vehicle on 19 November 2018 and of the contents of the motor vehicle and of the contents of the mobile phone be excluded from evidence at the trial of the defendant.