R v Paull[2021] QSCPR 22

SUPREME COURT OF QUEENSLAND

1. [1]
   HENRY J:  At 1.50 am on 2 July 2020, the applicant was walking in the Cairns CBD when the police detained him and required him to produce identification and then submit to being searched.  He was found to be in possession of a pipe, a small quantity of cannabis and 26.812 grams gross (18.92 grams pure) of MDMA which he said was for personal use.  He was charged with each of those unlawful possessions. 
2. [2]
   The ensuing indictment charged him with one count of possession of MDMA with a circumstance of aggravation and one count of possession of cannabis simpliciter.  He makes application for the exclusion from evidence at his trial of his possession of the unlawful items and what he said of them. 
3. [3]
   The ground for the application is that the stopping, detaining and searching of the applicant was unlawful and, in consequence, the fruits of the search and what the applicant said of them was unlawfully obtained. 
4. [4]
   The legal foundation for the ruling sought by the applicant was conveniently summarised by Mason CJ, Deane and Dawson JJ in Ridgeway v R [1995] 184 CLR 19, 30 – 31 as follows: 

“At least since Bunning v Cross, it has been the “settled law in this country” that a trial judge has a discretion to exclude prosecution evidence on public policy grounds in circumstances where it has been obtained by unlawful conduct on the part of the police.  That discretion is distinct from the discretion to exclude evidence of a confessional statement on the grounds that its reception would be unfair to the accused.  The discretion extends to the exclusion of both “real” (or non-confessional) evidence and confessional evidence.  As Barwick CJ pointed out in R v Ireland, in a judgment with which the other four members of the court agreed, the rationale of the discretion is that convictions obtained by means of unlawful conduct “may be obtained at too high a price”. 

In its exercise, a trial judge must engage in a balancing process 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”.  The basis in principle of the discretion lies in the inherent or implied powers of our courts to protect the integrity of their processes.  In cases where it is exercised to exclude evidence on public policy grounds, it is because, in all the circumstances of the particular case, applicable considerations of “high public policy” relating to the administration of criminal justice outweigh the legitimate public interest in the conviction of the guilty.”

5. [5]
   It follows it is necessary to firstly determine whether the evidence was unlawfully obtained and, secondly, whether the discretion, thus enlivened to exclude it, should be exercised. 
6. [6]
   The applicant urges a view of the facts that the police stopped, detained and searched the applicant all in the purported exercise of their powers as police; powers only enlivened if police held a requisite reasonable suspicion as stipulated in the Police Powers and Responsibilities Act 2000 (Qld) (PPRA).  The applicant contends that such suspicion as the police may have had was not reasonably held because the circumstances were objectively inadequate to ground a suspicion which was reasonably held, both when they first stopped him and asked him to produce his identification and by the point in time when they were embarking upon searching him. 
7. [7]
   The respondent, on the other hand, characterises the matter as one in which the police simply approached the applicant and engaged in what was, in effect, a consensual citizen­to­citizen exchange, during which the applicant’s behaviour then triggered a reasonable suspicion justifying the applicant’s detention and search.  It is thus in issue whether the police did, and were entitled in the first place to, stop the applicant in the exercise of their power and whether, once the interaction was underway, they were entitled to search the applicant. 
8. [8]
   Turning first to the stopping of the applicant, one begins with the trite proposition that police are also citizens and they are as entitled as any citizen to attempt to engage other citizens in conversation as each walks in public.  As much seems consistent with s 8 of the PPRA which provides: 

“This Act does not prevent a police officer from speaking to anyone or doing anything a police officer may lawfully do apart from this Act when performing the police officer’s duties, whether or not in relation to an offence, without exercising a power under this Act or using any form of compulsion.”  

9. [9]
   However, also consistently with that section, it remains that no citizens have the power to detain another citizen walking in public by compelling the person to stop and submit to directions unless it is a power properly exercised and lawfully conferred by circumstance or under the lawful power of their employed position. 
10. [10]
    If the police in this case did detain the applicant by stopping him, requiring him to provide his identification and submit to a search, the parties identify two provisions of the PPRA as potentially relevant sources of possible power, namely, ss 40(1) and 29(1). 
11. [11]
    Section 29(1) provides:  

“A police officer who reasonably suspects any of the prescribed circumstances for searching a person without a warrant exist may, without a warrant, do any of the following ––  

1. (a)
   stop and detain a person;
2. (b)
   search the person and anything in the person’s possession for anything relevant to the circumstances for which the person is detained.”

12. [12]
    Schedule 6 of the PPRA defines “reasonably suspects” as meaning, “suspects on grounds that are reasonable in the circumstances”.  Suspicion is not as high a requirement as belief.  But the requirement that it be a reasonable suspicion introduces the need for some factual basis to reasonably ground a suspicion – see George v Rockett [1990] 170 CLR 104.
13. [13]
    As to the prescribed circumstances referred to in s 29, they are listed in s 30 and relevantly include within s 30(a) that the person has something that may be an unlawful dangerous drug or stolen property or unlawfully obtained property or tainted property and, within s 30(c), that the person has something that may have been used, is being used, is intended to be used or is primarily designed for use as an implement of house breaking, for unlawfully using or stealing a vehicle or for the administration of a dangerous drug. 
14. [14]
    The other potentially relevant section, s 40(1) provides: 

“A police officer may require a person to state the person’s correct name and address in prescribed circumstances.” 

15. [15]
    Notably, the power in s 40(1) is not to stop and detain.  Though, were a suspect to refuse a s 40 requirement issued by police, that would appear to activate a power to then charge the person in that it is an offence pursuant to s 791(2) PPRA to contravene such a requirement. 
16. [16]
    Section 40’s prescribed circumstances are listed in s 41.  Relevantly, they include at 41(b) that, “a police officer reasonably suspects the person has committed an offence…”.
17. [17]
    In the lead up to the search, two uniformed police officers, Sergeant Allen and Constable Radcliffe, were conducting mobile patrols of the Cairns CBD in a marked police vehicle.  Ahead of them they observed a male pedestrian who crossed the road and continued walking along the footpath in the direction of the esplanade.  Sergeant Allen’s statement asserts:

“The male was walking extremely fast which has aroused our suspicion.” 

18. [18]
    Constable Radcliffe’s statement asserts:

“The male person was the only person out at the time, and I recall he was walking rather rapidly.  This has raised our suspicion.” 

19. [19]
    In oral evidence, Constable Radcliffe elaborated upon the supposed significance of the applicant being the only person out at the time, explaining, at that time of year, while there was not a lockdown pursuant to COVID restrictions, there were still restrictions on businesses, so that there were no businesses open at that hour of the day and, as he put it, “no other persons in the CBD”. 
20. [20]
    I reject that evidence as unreliable.  For a start, the ensuing police body­worn camera footage of what occurred demonstrates that, on the subsequent police interaction with the applicant on the footpath, another pedestrian walked by.  Further, it is common ground between the parties that, by that point, for example, gatherings of up to 20 people were permissible at various locations, recreational travel and accommodation were permissible, unlimited travel within Queensland and overnight stays were permissible and dining in or seated drinks in restaurants, cafes, pubs, registered or licenced clubs, RSL clubs, hotels and casinos (subject to there being 20 patrons allowed per room, per defined area) was permissible. 
21. [21]
    Even allowing that most, if not all, drinking and dining venues would have been closed in the CBD by the late hour of these events in that particular era, the Cairns CBD had many substantial accommodation complexes, such as hotels, apartment buildings and backpacker hostels, housing permanent residents, tourists and other travellers.  It is thus inevitable a substantial number of people would have been residing temporarily or permanently in the CBD that night; people who were at liberty to walk to and from their accommodation 24 hours a day.  I, of course, readily accept that pedestrian traffic about the CBD at that hour of the night in that era would have been light. 
22. [22]
    Constable Radcliffe also introduced for the first time in his oral testimony the additional assertion that the male person was not merely walking rather rapidly but his head was down.  That the officer saw fit to specifically identify in his statement what had raised his suspicion yet failed to mention this component of his observations causing him to hold it, causes me to regard the assertion as unreliable.  It is also academic, in that it is utterly unremarkable that pedestrians might walk with their head down from time to time, all the more so on a night when it had been raining, as it had been on this occasion. 
23. [23]
    Constable Radcliffe also made reference to police intelligence in the following context: 

“There was no other persons in the CBD.  So it was just him walking through the CBD.  His head was down.  He was walking rather rapidly.  So that’s raised a suspicion with me as, “Why is he doing that behaviour?”  We also had some intel that came into us or things that we observed within the Tactical Crime Squad during the COVID lockdowns is that the only persons that tend to be out at early hours of the morning were either property offenders or drug seekers, drug users or drug providers.” 

24. [24]
    The reference in that passage to “intel” struck me as likely ill-considered.  I note there was no reference to such “intel” as justifying what occurred in Constable Radcliffe’s statement.  Mere presence out in the early hours of the morning is plainly not a sufficient factual basis to ground a reasonable suspicion.  It may very well be that the proportion of pedestrian members of the public who happen to be involved in drug or property offending is statistically higher late at night than at other times of the day.  But the higher chance that a pedestrian the police might happen to stop late at night could be a property or drug offender cannot sensibly support an objective foundation for a suspicion that all or even most late-night pedestrians are. 
25. [25]
    The suspicion of the police, allegedly having been aroused by this fast­walking pedestrian, who was the applicant, drove around the block and pulled into the side of the street, level with the area on the footpath which the applicant, who had continued to walk in the meantime, was walking past. 
26. [26]
    The body­worn video footage shows Sergeant Allen, the driver, who was the officer closest to the applicant, raise his hand in a stop signal in the direction of the applicant.  It can be seen in the footage that the applicant then stops in obedient response, then standing still, obviously waiting for the police who were then disembarking from the vehicle. 
27. [27]
    Both police officers’ statements were muddy as to the precise events that led to the applicant being paused on the footpath and them alighting from the vehicle and approaching him.  However, it is clear that he stopped because he was signalled to stop by a uniformed police officer in a police car.  It is likewise clear he remained in that stopped position while the police alighted from the vehicle and approached and spoke to him, because he had been stopped by them. 
28. [28]
    It was conceded by Constable Radcliffe that the police did stop the defendant, although he could not precisely recall how that was done.  Sergeant Allen, who used the term “intercepted” in his statement, agreed that, by that, he meant the police had stopped the applicant. 
29. [29]
    While the body­worn footage has a delay in the commencement of its volume, it is apparent that Constable Radcliffe, the first of the officers to get to the applicant, asked the applicant to produce identification.  The prosecution urges the context in which that occurred was that it was a request, not a requirement, likening the situation to that in R v Goode [2018] QSCPR 16, where Bowskill J declined to conclude the request to produce identification in that case was unlawful.  Her Honour rejected the submission the request was, in the circumstances, coercive.  There, the applicant has stopped but not been required to do so.  A question whether he had any ID on him followed and he produced it.  That case is different from the present because here the circumstances in which the request was made rendered it coercive.
30. [30]
    If the police had not required the applicant to stop, none of this would have happened.  The applicant would simply have continued walking as he was along the footpath.  Having required him to stop in the obvious purported exercise of their power as police, the request made directly thereafter, that he produce identification, could not sensibly be regarded as other than a requirement. 
31. [31]
    The only potential power to make such a requirement was s 40 and, even then, only by inferring that the production of identification is a way by which a person states the person’s name and address.  The problem though is that, by this point, the only basis for a reasonable suspicion was that the applicant was a pedestrian walking quickly late at night in the CBD when not a lot of other people were about walking. 
32. [32]
    The many people who reside permanently and temporarily in the Cairns CBD or walk to and from it at night would be astonished to learn that in our society, they may be compelled to stop and produce identification to police merely because they happen to be walking quickly late at night in the CBD.  Such a flimsy pretext for interfering with the right of citizens to go about their lives without the unjustified intervention of agents of the executive branch of government falls very far short of the requirement of the legislative branch of government that there exist a factual basis to reasonably ground the suspicion necessary to authorise such interference. 
33. [33]
    The purported suspicion of the police that the applicant may have committed a property offence or a drug offence could not, in my conclusion, have been held on grounds reasonable in the circumstances as at the time that they stopped the applicant and required him to produce his identification.  None of the prescribed circumstances which would allow them to have required him to state his name and address pursuant to s 41 were present. 
34. [34]
    As for the power conferred by s 29(1)(a) to stop and detain a person, once again, as at the time of stopping the applicant and requiring him to produce identification, the requisite reasonable suspicion of prescribed circumstance was not present.  This inevitably bears upon what then followed. 
35. [35]
    The police assert that after the point in time the applicant was required to produce his identification he was visibly shaking when trying to open his bag and get his wallet, his voice was slightly shaky, and he still shook when handing over his identification.  In oral evidence, the emphasis of both officers seemed to be upon the purportedly objective indicator that the applicant’s hands were shaking.  It is apparent from the body-worn footage that they were not shaking to the extent mimicked by Constable Radcliffe in the witness box, but I cannot discern whether they were shaking more slightly in the way Sergeant Allen described.  However, Sergeant Allen explained that this was in the context of the applicant moving his hands about into his pockets and other places.  What seems to have been overlooked by these officers is that when the applicant had been required to produce his identification he was holding a number of items and proceeded, once requested to produce identification, to hold all of them in one hand, not without some difficulty.  He then moved his hand about his pockets, obviously searching for whereabouts on his person or the items he had with him he had placed the identification card which he eventually found and produced.
36. [36]
    By this point the applicant had already been stopped and, in the context then prevailing, implicitly required to remain stopped, rather than continue walking.  While the police did not, at the outset, say he was detained the practical effect of what had occurred from the jump was that he had been detained by reason of the requirement that he stop. 
37. [37]
    The applicant placed emphasis on a decision of R v Swain [2012] QSC 233 in which Martin J concluded the mere fact that someone was parked in a police parking area, and that the person appeared nervous, was insufficient to grant a reasonable suspicion.  As Martin J put it in that case:

“A person who has parked his vehicle in a police-parking only area may well become very nervous when approached by police.  But that in itself does not give rise to a reasonable suspicion.”

38. [38]
    The position is more difficult for the respondent here.  The applicant did not simply become “apparently nervous” when approached by police.  He did so when he was stopped by police and, whilst stopped in obedience to them, was required to produce identification for which he searched with difficulty because he was struggling to hold various items in one hand.  The alleged nervousness he exhibited at that stage occurred only by reason of the chain of events that I have described.  As I have explained, the police had no power to stop him in the circumstances of this case.  It is a significant stretch to infer against that background that mere apparent nervousness provoked by circumstances of the police’s unlawful making ought be regarded by the court as grounding suspicion which is reasonable in the circumstances. 
39. [39]
    What followed was that Constable Radcliffe informed the applicant that he was, “A bit jittery to me, at the moment, mate so I’m going to – I’m going to detain you for the purpose of a search, okay?  Just take your bum bag off for us”.  The search had, in my view, thus started.  The video footage indeed shows movement towards a pillar where things could be placed during the search.  It was at the pillar area where the police had requested him to move that the applicant said words to the effect of, “I’m in trouble.  Fuck it.” and produced a bag from inside his pants which contained the illicit items earlier mentioned in these reasons. 
40. [40]
    The respondent made the optimistic submission that even if the search had been embarked upon unlawfully, it did not matter, because the production of the bag was done voluntarily.  It is true it was physically done by the applicant.  But it was self-evidently done in the context of a search which had already begun and which he had been required to submit to.  Nothing turns upon whether it was the police or the applicant, probably motivated by reasons of modesty, who wound up locating the bag within his pants and pulled it out.  It would plainly not have been produced but for the fact the search had commenced, and that he, prior to that, in any event, had already been stopped and detained.  I have, however, already explained why the police did not hold the requisite reasonable suspicion empowering them to stop, detain and search pursuant to s 29(1).  Each of these steps in the process that occurred had an obvious causal flow and connection.  None of it would have occurred but for the unlawful purported exercise of police power to stop a pedestrian walking quickly in the CBD late at night. 
41. [41]
    In the course of what followed some statements were made by the applicant in response to some police questions.  Again, none of this would have occurred but for the mentioned unlawfulness.  The evidence of what he said was thus, likewise, unlawfully obtained. 
42. [42]
    The second issue then is whether, enlivened by the finding of unlawfulness, the discretion to excuse evidence should be exercised in this case. 
43. [43]
    It is important that none of what follows in these reasons should be understood as in any way indicating there is a problem with police maintaining an active presence out on the beat at all hours of the day.  A visible presence in the community is a notoriously successful policing strategy.  It is often enough observed in studies of criminal law that the chance of being caught is a vastly more effective deterrent than the possibility of draconian punishment.  There is, however, an obvious difference between a proactively visible police presence and an excess of police power.  It is offensive to the expectations of the community generally, in what is not a dictatorship but a democracy, that they may be compelled to stop, produce identification and submit to a search by police other than in circumstances by which police are properly empowered to do so.  Conjuring up spurious bases to interfere with the liberty of a citizen such as that they are walking fast in the CBD late at night is conduct singularly undeserving of curial approval. 
44. [44]
    I, of course, weigh up the apparent seriousness of the applicant’s wrongdoing.  In particular, his possession of the MDMA was in an amount which, even for a 19­year­old virtual first offender such as he, would likely attract a term of imprisonment, albeit, depending on whether he were to plead guilty to it, with the arguable prospect of immediate release.  The drugs in his possession were seized by the police and there ended the prospect of them entering into the community.  Of course that does not reduce the objective seriousness of what he did.  Allowing though for the desirability of the goal of bringing the wrongdoer to conviction, I nonetheless conclude in the circumstances of the case that that is outweighed by the undesirable effect of giving curial approval to the police stopping, detaining and searching people without genuinely holding the requisite reasonable suspicion required to empower them do so.  It follows the evidence should be excluded. 
45. [45]
    My order is, the evidence of the applicant’s possession of unlawful items and what he said of them at about 1.50 am when dealt with by the police on 2 July 2020 is excluded from evidence at his trial.