R v Lock[2021] QSCPR 19

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant is charged on indictment with one count of unlawful possession of the dangerous drug methylamphetamine, in a quantity exceeding 2.0 grams.  The offence is alleged to have been committed on 19 July 2019.
2. [2]
   The applicant applies for a ruling, under s 590AA(2)(e) of the Criminal Code, that the evidence obtained from the search of his car on 19 July 2019 – that is, the drugs – be excluded from the applicant’s trial.
3. [3]
   The applicant submits that the search carried out of his car was unlawful because the circumstances asserted by the relevant police officer, as the grounds of his suspicion, were not sufficient to induce the required suspicion in the mind of a reasonable person, such as to enliven the power to search the car under s 31(1)(c) of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA).  If found to be unlawful, the applicant further submits that the discretion to nonetheless permit the evidence obtained from the search to be relied upon should not be exercised favourably to the Crown.
4. [4]
   The evidence before the court for the purposes of this application comprises the written statements of Senior Constable McDowall, dated 8 October 2019; Senior Constable Gabriel, dated 21 October 2019; and Senior Constable Kay, dated 7 October 2019; as well as the transcript of the committal hearing on 9 February 2021, at which each of those officers was cross-examined.  The officers were not further examined or cross-examined at the hearing of the application before me.
5. [5]
   In addition, there is agreement between the parties that the QP9 created by SC McDowall on 13 August 2019 included the following:

“[p]olice intercepted a white Jeep Cherokee bearing Queensland registration 77JDL for the purpose of an RBT and licence check.

Upon taking up with the driver of the vehicle being the defendant police conducted enquiries in relation to the passengers and actions of the driver during the evening.  As a result of these inquiries police formed a reasonable suspicion for the defendant being in possession of dangerous drugs.”

6. [6]
   The evidence is that on the evening of 19 July 2019 the three police officers were rostered on together.  They were in a police vehicle, in the Logan area.  SC McDowall was driving; SC Gabriel was in the front passenger seat; and SC Kay was in the back seat.  SC McDowall was regarded as the senior officer, as he was the longest serving of the three officers.
7. [7]
   At about 8.40 pm, the police officers observed a white Jeep, which other evidence shows belongs to the applicant, and SC McDowall followed the Jeep for a period of time.
8. [8]
   While they were driving, SC Gabriel used his QLiTE device to conduct a search of the vehicle (that is, of its registration number) and noted that the vehicle was registered to the applicant.  He says, in his statement, “I have had previous dealings with the defendant [applicant] where a quantity of methylamphetamine was located”.
9. [9]
   SC Gabriel conveyed the information from the QLiTE device, and also his own prior knowledge of the applicant, to SC McDowall.  It was on the basis of this information that SC McDowall decided to intercept the vehicle.
10. [10]
    The information conveyed by SC Gabriel was, firstly, that he had had a previous dealing with the defendant some months earlier.   SC Gabriel said he is part of a “drug-related team” doing drug work in the Loganlea area.   A few months earlier, he had cause to go to an address in Sarah Street, Loganlea, after following a Commodore travelling at high speed to that address.  The defendant was located at the house, “hiding downstairs” (having first been seen at the front of the house when police arrived).  The house was searched, drugs were found, and someone else (not the applicant) was charged in relation to that.   The other part of the information conveyed by SC Gabriel was that the QLiTE device showed “intel” linking the defendant to the Sarah Street house, the day before his car was stopped.  The officer’s recollection was that “there was intel … in relation to supply and trafficking of dangerous drugs, with the defendant listed as the subject and … Sarah Street”.  The actual entry was called for, and produced, and showed, in respect of the applicant, that he was “sighted attending address of interest [the Sarah Street address] in relation to supply of drugs”.  SC Gabriel said he interpreted that entry as meaning that the applicant was at the particular address, which was of interest to the police (because a “known drug offender” lived there), and he was in some way involved in the supply of dangerous drugs. 
11. [11]
    On the basis of that information, SC McDowall said he decided to intercept and stop the applicant’s car, to find out who was driving and in the car.  It is in that context that he said he decided to stop the car to do an “RBT” and licence check.  However, it is clear from the evidence of the officer at the committal hearing that the reason he intercepted the car was because, based on the information provided by SC Gabriel, he believed the applicant might have drugs in the car. 
12. [12]
    It was only SC McDowall who formed the suspicion relied upon, for the purposes of enlivening the search power under s 31 of the PPRA.  The other two officers deferred to him, as the senior officer.  SC Gabriel’s evidence was that he, personally, “didn’t form a reasonable suspicion such as to conduct a search”, observing that he was not privy to the conversation which SC McDowall had with the applicant.  SC Kay, who was in the backseat, said he “probably had [his] mind on other things”.
13. [13]
    SC McDowall’s written statement, dated 8 October 2019, was not to the same effect as his evidence at the committal hearing.  In his written statement SC McDowall said he followed the applicant’s car for some time, before deciding to intercept it.  He then took up with the driver, ie the applicant, and asked him about his intentions for the evening and where he had been before the interception.  He said the applicant was vague.  He also questioned the applicant about his driving patterns, which he had observed to be “erratic and evasive” compared with the version provided – the applicant had told the officer he was driving to a mate’s house in Loganlea and yet he had just left the Loganlea area.  In his written statement, SC McDowall then says he “further viewed intelligence holdings” of both the applicant and his passenger, after that conversation, and then “formed a reasonable suspicion that there were drugs in the vehicle and subsequently … detained both persons for a search”.
14. [14]
    The QP9, created on 13 August 2019, similarly reflects a different chronology of events – with the enquiries about the applicant only being made after stopping the car; and stating that the car was stopped for an RBT and licence check.
15. [15]
    The clear evidence of SC McDowall, at the committal hearing, was that he had already formed the suspicion that there might be drugs in the car, before deciding to stop the car, based on what he had been told by SC Gabriel.
16. [16]
    When asked about this inconsistency at the committal hearing, and why this did not appear in the written statement or QP9, SC McDowall said that in part he was concerned about not disclosing information about other investigations (I infer, the Sarah Street house).  He maintained that he did intend to conduct an RBT and licence check – in order to identify the driver, and “ensure it was who I thought it was”.  But acknowledged that he did pull the applicant’s car over for the purpose of a search.
17. [17]
    Contrary to the submission of defence counsel, I do not draw the conclusion, from the inconsistency, that SC McDowall was being dishonest and that his evidence should be regarded as wholly unreliable.  None of the officers were required to give evidence or be cross-examined before me.  The explanation provided, in terms of avoiding referring to another investigation, is plausible.  And I do not form the view, based on the transcript of the committal hearing, that SC McDowall was being anything other than honest in his evidence as to the basis upon which he made the decision to stop and search the vehicle.  He did not, for example, endeavour to embellish the story.  He candidly accepted that the reason he stopped and searched the vehicle was because of what he was told by SC Gabriel, although maintaining that he also intended to check who was in the car before doing so.
18. [18]
    The question is whether the information SC Gabriel provided to SC McDowell was sufficient to meet the test under s 31(1) of the PPRA.  That section provides:

“31 Searching vehicles without warrant

(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 –

1. stop a vehicle;

2. detain a vehicle and the occupants of the vehicle;

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

19. [19]
    Under s 32(1)(c), it is a prescribed circumstance for searching a vehicle without a warrant that there is something in the vehicle that may be an unlawful dangerous drug.
20. [20]
    As Dalton J helpfully summarised in R v Fuentes [2012] QSC 288 at [21]:

“The term ‘reasonably suspects’ is defined in Schedule 6 to the PPRA as meaning, ‘suspects on grounds that are reasonable in the circumstances’.  There is also well-established common law authority in relation to both the concept of suspicion and the concept of reasonable suspicion. The meaning of suspicion in this context is discussed by the High Court in George v Rockett.^[1]  A suspicion and a belief are different states of mind.  A suspicion is a state of conjecture or surmise. It is more than idle wondering.  It is 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.^[2]  The facts must be sufficient to induce the suspicion in the mind of a reasonable person.^[3]  The suspicion must be reasonable, as opposed to arbitrary,^[4] irrational or prejudiced.” [underlining added]

21. [21]
    As Applegarth J said in R v Morrison [2020] QSCPR 19 at [21]:

“The statutory definition of ‘reasonably suspects’ in the context of s 31 directs attention to the presence of an actual suspicion by the relevant officer and whether that officer’s suspicion is based on grounds that are ‘reasonable in the circumstances’.  The circumstances must be sufficient to induce a ‘reasonable suspicion’ in the mind of a police officer in those circumstances.”

22. [22]
    On the evidence, SC McDowall had an actual suspicion that there may be drugs in the applicant’s car, based on what he was told by SC Gabriel.^[5]  The facts grounding that suspicion were that the applicant had been at a particular address, which was of interest to the police in connection with drug offending, a few months before and had been seen there again the day before.  He was in the same area when intercepted.  In my view, those facts are sufficient to induce a reasonable suspicion in the mind of a police officer for the purposes of s 31(1).  Given that apparent association between the applicant and a known-location of drug offenders, and the fact, as I find, that the police officers would be well accustomed to the idea of people otherwise involved in drug offending having drugs in their cars (a finding I regard as uncontroversial, given the common experience of the courts in relation to the facts of drug possession offences), this suspicion is plainly “more than mere wondering”.  It is right to say it is a “slight opinion without sufficient evidence”, but that is adequate to form a reasonable suspicion – as compared to a reasonable belief.  There was some factual basis to SC McDowall’s suspicion; and, in my view, the facts were sufficient to induce that suspicion in a reasonable person.  It was not the case that he decided to randomly intercept just any car and search it.  He decided to intercept the applicant’s car, and search it, on the basis of the information provided to him by SC Gabriel.
23. [23]
    I do not regard the evidence of SC Gabriel, that he had not formed a reasonable suspicion, as weighing particularly against this conclusion.  It was apparent, from both his evidence and that of SC Kay, that they were content to rely upon the decision made by SC McDowall, as the senior officer amongst them.   The question for the court on this application is whether the factual basis identified by SC McDowall as the grounds for his suspicion was reasonable in the circumstances.
24. [24]
    It was, therefore, lawful under s 31(1) of the PPRA for SC McDowall to stop and search the applicant’s car.
25. [25]
    When the car was searched, SC McDowall found, hidden inside the centre console of the car, in a compartment accessed from the driver’s side, a black glasses case containing one large (sandwich) clip seal bag containing white crystal substance.  That substance was subsequently analysed and found to weigh 73.202 grams (just short of three ounces) of which 45.897 grams was pure methylamphetamine.^[6]  The applicant told officer McDowell that no one else used his car, and he was the only one who drove it.
26. [26]
    If I had taken a different view, as to the reasonableness of SC McDowall’s suspicion, such that the search of the car was unlawful, I would in any event have concluded that the evidence obtained from the search – that is, the drugs – should not be excluded in the exercise of the public policy discretion.  I gratefully adopt, in this regard, the summary of the relevant principles set out by Applegarth J in R v Morrison [2020] QSCPR 19 at [32].^[7]
27. [27]
    I am not prepared to find that SC McDowall acted in reckless disregard of the law, or dishonestly.  Even if I had formed the view that the basis of his suspicion was not, without more, sufficient to make it reasonable, I would nonetheless have concluded that he acted in good faith, and made a mistaken assessment of whether the facts satisfied the legal requirement. 
28. [28]
    Clearly, the evidence obtained in the search is cogent; that cogency is not affected by the manner of exercise of the search power.  It is of fundamental importance in the proceeding.  If the evidence was excluded, the proceeding would have to be discontinued.  That is of concern because the offence, of unlawful possession of such a substantial quantity of methylamphetamine, is a serious one.  There is no suggestion that the conduct of unauthorised searches is encouraged or tolerated by those in higher authority in the police force.  As in Morrison (at [38]) perhaps it would have been relatively easy for SC McDowall to make further enquiries of the applicant, after stopping the car, so as to have additional grounds for his suspicion that the car may contain unlawful dangerous drugs.  But on the other hand, that would probably only have involved asking the applicant further questions about his whereabouts, and perhaps asking questions of the passenger, which they each could have declined to answer. 
29. [29]
    The exercise of the discretion involves weighing competing public interests – one being the desirable goal of bringing to conviction a wrongdoer; and another being the undesirable effect of giving curial approval, or even encouragement, to the unlawful conduct of those whose task it is to enforce the law.  In circumstances where, had I found the search to be unlawful, I would not have found that to be the result of deliberate or reckless disregard of the law, let alone dishonesty, and given the other matters just referred to, in my view the balance weighs strongly in favour of receiving the evidence.
30. [30]
    Accordingly, the application to exclude the evidence obtained from the search on 19 July 2019 is refused, on the basis that the search was lawful; or, even if the search was unlawful, on the basis that the exercise of the public policy discretion favours reception of the evidence.