R v Sewell[2021] QSCPR 6

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant is charged on indictment with the following offences, alleged to have been committed on 19 July 2019:

   1. four counts of supplying a dangerous drug;
   2. four counts of possessing the dangerous drug methylamphetamine in a quantity exceeding 2 grams;
   3. one count of possessing the dangerous drug cocaine in a quantity exceeding 2 grams;
   4. one count of possessing the dangerous drug MDMA;
   5. one count of possessing various things for use in connection with the commission of the crime of possessing a dangerous drug; and
   6. one count of possessing Australian currency obtained from supplying dangerous drugs.
2. [2]
   The applicant applies for a ruling, under s 590AA(2)(e) of the Criminal Code, that the following evidence be excluded as evidence in the trial on the charges on the indictment:

   1. evidence obtained from the search of the applicant;
   2. evidence obtained from the search of the car the applicant was driving when he was intercepted;
   3. evidence obtained from the search of the applicant’s phone; and
   4. evidence obtained from the search carried out at unit 8 of the motel where the applicant had been staying,

each of which took place on 19 July 2019.

3. [3]
   The applicant submits that the searches carried out of his person, the car and his phone were unlawful because the circumstances asserted by the police officers as the grounds of their 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 applicant, under s 29 of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA), or search the car or the phone, under s 31(1)(c) of the PPRA.  If found to be unlawful, the applicant further submits that the discretion to nonetheless permit the evidence obtained from the searches to be relied upon should not be exercised favourably to the Crown, including having regard to the fact that an unlawful search involves a contravention of the right to privacy recognised by s 25(a) of the Human Rights Act 2019 (Qld).  The applicant concedes, however, that if the search of his person is found to have been lawful, the searches of the car and his phone would also be lawful.
4. [4]
   The applicant submits that the search carried out of the motel unit where he was staying was unlawful because the circumstances asserted by the police officers as the grounds of their suspicion were not sufficient to induce the required suspicion in the mind of a reasonable person, such as to enliven the power to conduct a search to prevent loss of evidence under s 160 of the PPRA.
5. [5]
   The evidence is that on the evening of 19 July 2019 two police officers, Senior Constable Collins and Senior Constable Jones, were on duty together conducting patrols in an unmarked police car.  At about 8.30 pm, or shortly before, they saw a car drive away from the vicinity of the motel.   SC Collins said he saw the car exiting the driveway.^[1] They regularly conduct patrols of this motel, according to SC Collins, “due to persons regularly using this accommodation to conduct drug deals and other illegal practices”.    SC Collins said that on many occasions he has intercepted people attending and leaving this area in possession of dangerous drugs and stolen property and he has also executed a number of search warrants there, resulting in the seizure of dangerous drugs.^[2]  SC Jones also said this place is known to him for having a high instance of drug related activity.^[3]
6. [6]
   SC Collins was driving the police car; SC Jones was the passenger.  After seeing the car, SC Jones entered the registration number of the car into the QLite device.  This brought up a number of yellow coloured “flags” which SC Collins said means there have been people linked to that car who are offenders or who have previously been charged.  SC Collins said he could see, looking to his left, the yellow colour on the screen indicating these flags.^[4]  The police officers decided to stop the car for a licence check. 
7. [7]
   Under ss 60(1) and (3)(b) of the PPRA there is no requirement that a police officer have any state of mind, such as a reasonable suspicion of anything, before exercising a power to require a person to stop a car for this purpose.  It is apparent, however, that the place where the car was first seen, and the presence of “flags” associated with the car on the QLite device, were reasons for deciding to conduct a licence check on the driver of the car.  There is nothing remarkable about that, in my view.  It is unsurprising that police would use knowledge of this kind to decide to stop a particular car and check the driver’s licence.
8. [8]
   SC Collins activated the police lights and siren to indicate to the driver of the car to pull over to the side of the road.  In his statement, SC Collins said the car took a “considerable amount of time [to pull over] despite there being no other vehicles on the road”.^[5]  In his oral evidence, he said it took what he regarded as an unreasonable time to pull over.   Although something was sought to be made of this in cross-examination, I do not regard it as an inconsistency of any significance.  SC Jones also said the car took “an unusually long time to pull over, driving past a number of safe spots to do so”.^[6]
9. [9]
   Once the car had stopped, the officers approached the car.  SC Collins gave evidence that upon approaching the car, he could see that the driver was moving his shoulders, and looking down, which suggested to him that he may have been concealing something.^[7]  The applicant was the driver, and the only person in the car.
10. [10]
    The interaction between the police and the applicant was recorded on body worn cameras (exhibit 1).  The recording begins whilst the police are driving, before the applicant pulls over.  Once the applicant’s car stopped, SC Collins approached the driver’s side, and told the applicant he has been stopped for a licence check.  The applicant turns to his left, seeming to look for his licence, before turning back to the officer, running his hands over his head, and saying that “it’s back at the motel”.   He is asked if he has any ID, and says he does not, volunteering that he is staying at the particular [named] motel.  He is asked by SC Jones what his name is and provides it.  SC Jones enters the name into his QLite device, which brings up a deal of information about the applicant, including information linking him to outlaw motorcycle gang activity, officer safety warnings and information about his interactions with police.
11. [11]
    At about the same time, SC Collins asks the applicant where he is from, and what he is doing “around here”.  The applicant tells him he lives somewhere else but is staying at the motel with his “missus”, because he has just helped her move out of where she was previously living.  SC Collins asks the applicant if he has “any history with us”, and the applicant candidly acknowledges that he does, mentioning “extortion” and that he is an “ex bikie”. 
12. [12]
    SC Collins said that while SC Jones was carrying out the check on the QLite device, he looked over and observed multiple flags linked to the applicant which included warnings about the safety risk posed by the applicant as a result of previous violence and use of firearms.  Some of this information dated back to 2014, 2015 and 2016.^[8]  But there was also very recent information, from 10 July 2019.^[9]   Although it was submitted for the applicant that the older information could not reasonably form the grounds of a suspicion, I do not accept that.   A pragmatic approach has to be taken to consideration of the grounds identified by police officers as the basis on which they have formed a suspicion.  Taken in combination with other matters, as in this case, the presence of safety warnings or “flags”, even if they are a few years old, are relevant in my view as part of the grounds reasonably to be taken into account by a police officer in assessing a particular situation.   
13. [13]
    SC Collins’ evidence was that whilst he was speaking to the applicant, he noted that the applicant was overly nervous.  In his statement, SC Collins said that when the applicant was answering questions, he “continually scratched his face, he sighed, and repeatedly ran his hands over his head”.^[10]   SC Jones said that the applicant “appeared agitated and fidgety” when speaking to SC Collins, and “appeared unusually nervous, repeatedly running his fingers through his hair”.^[11]   SC Collins, in particular, was challenged in cross-examination at the committal hearing about his description of these mannerisms as “continual”.  Having watched the body worn camera footage which forms part of exhibit 1 (once in the course of the hearing and a second time in preparing these reasons), I accept the general description given by SC Collins and SC Jones of the applicant’s demeanour.  Whilst it is not the case that the applicant was, literally, continually rubbing his hands over his head etc, he does do the things described by SC Collins a number of times.  And there is a notable mannerism of the applicant’s – rubbing his hand(s) over his head – when asked certain questions, the answers to which one can infer, with the benefit of hindsight, were a cause of some discomfort to him:  for example, when asked if he has “anything recent”, in terms of interactions with the police, to which he says “no, not at all”; and “where are you off to now?”, to which he responds, somewhat vaguely, that he is going to get dinner.
14. [14]
    Section 29(1) of the PPRA provides that:

“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—

(a)  stop and detain a person;

(b)  search the person and anything in the person’s possession for anything relevant to the circumstances for which the person is detained.”

15. [15]
    Under s 30(1)(a)(ii), one of the prescribed circumstances for searching a person without a warrant is that the person has something that may be an unlawful dangerous drug.
16. [16]
    A police officer who reasonably suspects that a person has something that may be an unlawful dangerous drug may, under s 29, lawfully search the person.
17. [17]
    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.^[12]  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.^[13]  The facts must be sufficient to induce the suspicion in the mind of a reasonable person.^[14]  The suspicion must be reasonable, as opposed to arbitrary,^[15] irrational or prejudiced.”

18. [18]
    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.”

19. [19]
    It was SC Collins who informed the applicant that he was to be detained for the purpose of a search.  The grounds on which SC Collins says he suspected that the applicant may have unlawful dangerous drugs on or with him were:

    1. the place where the car he was driving was seen to come from – known by both him and SC Jones to be a place where drug deals and other illegal activity frequently occurred;
    2. that there were “flags” associated with the car;
    3. that the applicant took a considerable amount of time to pull over, once alerted to do so by police;
    4. that as he approached the car, once it stopped, he believed he saw the applicant bending over, as though he was concealing something;
    5. the information volunteered by the applicant, and obtained from QLite about the applicant – including his history with police; and
    6. that he appeared nervous when speaking to the police.
20. [20]
    The Crown prosecutor commenced his submissions by saying that whilst he did not wish to overstate the matter, “there is an avalanche of evidence relating to the reasonableness of the suspicions for each of the searches” (the person, the car, the phone and the unit).  Without endorsing that particular adjective, I do find that the grounds on which SC Collins formed his suspicion before detaining and searching the applicant were patently reasonable in the circumstances.  That combination of circumstances would, I find, have been sufficient to induce the requisite suspicion in the mind of any reasonable person.^[16]
21. [21]
    It was, therefore, lawful under s 29 of the PPRA for the police officers to detain the applicant and search him.
22. [22]
    In the course of that search, the applicant was found to have about an ounce^[17] of methylamphetamine hidden in his underwear.  On analysis, the bag is said to have contained 20.419 grams of pure methylamphetamine.^[18] 
23. [23]
    Just before the drugs were found, as SC Collins was searching the applicant by lifting the waist band of his pants and underwear, there was a slight altercation as the applicant moved his body backwards and placed his hands inside the waistband.  He was then placed under arrest for obstructing the police, as well as possessing drugs, and was handcuffed.
24. [24]
    SC Collins says that at this point, he requested another unit to attend their location and assist with the arrest.^[19]  
25. [25]
    As conceded by counsel for the applicant, it follows from the finding that the search of the applicant was lawful, that the search of the car and the applicant’s phone was also lawful.  Apart from the circumstances above, the fact that the applicant was found with an ounce of methylamphetamine in his underwear is plainly sufficient to reasonably suspect there may be drugs in the car, for the purposes of ss 31(1) and 32(1)(c) of the PPRA.
26. [26]
    SC Jones searched the car and found a key for unit 8 of the motel, some money, a Samsung “cipher” encrypted mobile phone and a Nokia mobile phone. 
27. [27]
    The Samsung mobile phone could not be examined, as it was locked.  But SC Jones was able to examine the Nokia phone.  He said this phone contained multiple messages which he believed related to drug supply.  This included recent messages arranging to meet someone near an Officeworks store which was a very short distance from where the applicant was intercepted.  SC Jones said he suspected that the applicant was in the process of supplying this person with the ounce of methylamphetamine found concealed in his underwear, at the time they had intercepted him.  In addition, SC Jones said that given the recency of the majority of the messages, he suspected that the applicant had more methylamphetamine at unit 8 of the motel.^[20]
28. [28]
    SC Collins said that while SC Jones was examining the phone, he noted the applicant to become quite concerned.^[21]   SC Collins said, in his statement at [26], that the applicant “was agitated and anxious, continually asking if he could call his partner to inform her of his arrest”.  SC Jones also said that the applicant seemed very anxious to call his partner.^[22]  In his oral evidence at the hearing, SC Collins said the defendant asked three times to contact his partner.  As to this, in the footage the applicant can be heard to ask a number of times if he can call his “missus”, starting with when he first goes to get out of the car, having been detained for the search, and then, after the drugs were found in his underwear, whilst SC Jones is searching the car.  Although it is not possible to hear everything the applicant says in the footage, from what I can hear, to say he was “continually” asking if he could call his partner is an over-statement; but to say he asked three times accords with the footage.  The applicant does appear visibly agitated at times.
29. [29]
    SC Collins also said that he was told by SC Jones that the Nokia phone was continually receiving calls from a contact identified as the applicant’s partner (whose name was given by the applicant to SC Collins as Delta).  SC Jones does not mention this in his statement.  At the hearing of the application, SC Collins said he recalled the defendant’s partner was trying to contact him, but cannot now recall which phone this was on, or whether the phone rang or not, but says he remembers “seeing them” (I infer, the missed calls), once the applicant was inside the back of the assisting crew’s police car.^[23]  SC Jones said he does remember one of the phones either ringing or vibrating – “going off” as he put it –  and he believed that was a call from the applicant’s partner.    But he cannot now recall more specifically than that, given the time that has passed, and noting that this is not visible in the body worn camera footage.^[24]
30. [30]
    On balance, I accept the evidence of the police officers, that they believed the applicant’s partner was trying to call him on the night in question.  The evidence does not, however, support a finding as to how many times this occurred.
31. [31]
    Overall, whilst I accept that SC Collins’ use of the word “continual” in respect of the applicant’s mannerisms and requests to call his partner, and in relation to the calls from the partner, is an overstatement, I did not form the view that SC Collins was a dishonest witness; nor was such a submission made on behalf of the applicant.  SC Jones gave his evidence in a very forthright manner, appropriately conceding matters which he could not recall.  With the qualifications I have already identified above, I accept the evidence of the police officers.
32. [32]
    In relation to the decision to search unit 8 of the motel, the police officers’ evidence was as follows.  SC Collins said that having regard to the drugs found on the applicant, the money in the car and the text messages on his phone, he believed the applicant had more drugs at the motel.  He also believed that, by asking to call his partner, the applicant was trying to alert her to the fact of his interception and arrest, so that she could move the drugs to another location.^[25]  In addition, SC Collins said he was concerned that, given how close they were to the place where the applicant had been travelling to supply the drugs, the person to whom the applicant was going to supply the drugs may have witnessed the arrest.  He was worried this person could contact the applicant’s partner and tell her to move the drugs from the unit.^[26] 
33. [33]
    SC Jones’ evidence was to similar effect – that is, having regard to the recency of the messages on the Nokia phone, he suspected the applicant had more methylamphetamine at the unit he was staying in; that the applicant seemed very anxious to call his partner, who was still at the unit; that he believed that if the applicant were to contact her, then he would tell her to conceal or destroy the drugs; and that given how close they were to Officeworks, the person the applicant was on his way to supply the drugs to could have seen the police lights and become aware of the applicant’s arrest, and then contact the partner, resulting in the drugs at the unit being concealed or destroyed.^[27]
34. [34]
    That combination of factors lead SC Collins and SC Jones to decide that if they did not conduct an emergent search of unit 8, evidence in relation to the possession of dangerous drugs would be destroyed and/or lost.
35. [35]
    SC Collins and SC Jones formed the view that they would require further assistance before conducting that search, believing it to be too dangerous in the circumstances to attend the motel without that additional assistance.  It was a busy night, and other crews were not readily available – they had to call in aid officers from the child protection unit to assist with the search.  After placing the applicant into the custody of the additional crew who came to assist by the roadside, SC Collins and SC Jones drove to the motel and parked outside, waiting about 15 minutes until the other officers arrived, before approaching the unit at 9.23 pm.  The applicant’s partner was found sitting outside the front door of the unit. 
36. [36]
    Upon searching unit 8, the police found, among other things, a substantial quantity of methylamphetamine (about 145 grams pure, according to the draft statement of facts) and money (about $20,000).
37. [37]
    The evidence of the officers was that the process of applying for a search warrant would have taken between two to three hours, which both officers believed to be too long, given the risk of drugs at the unit being concealed or destroyed.
38. [38]
    Section 160 of the PPRA relevantly provides:

“160 Search to prevent loss of evidence

1. This section applies if a police officer reasonably suspects –

1. a thing at or about a place, or in the possession of a person at or about a place is evidence of the commission of a part 2 offence; and
2. the evidence may be concealed or destroyed unless the place is immediately entered and searched.

2. …

3. A police officer may enter the place and exercise search warrant powers, other than power to do something that may cause structural damage to a building, at the place as if they were conferred under a search warrant.”

39. [39]
    A part 2 offence includes an indictable offence.
40. [40]
    The police officers suspected that there were dangerous drugs at unit 8 of the motel where the applicant was staying, and that the drugs may be concealed or destroyed unless the unit was searched quickly.   The grounds on which they held that suspicion, as identified in their evidence summarised above, were, in my view, reasonable in the circumstances.  Contrary to the applicant’s submission, I do not accept that the perceived risk was “fanciful”. 
41. [41]
    Counsel for the applicant emphasised the time that passed after SC Collins found the Nokia phone and saw the “Officeworks text” (which occurred at about 12 minutes into the video footage) and when the search commenced, submitting that the evidence reveals there was no urgency and no immediate response by the officers to immediately take steps to preserve evidence at the unit.  He submitted that by the time the emergent search was commenced it was 9.23 pm, which was almost 50 minutes after the applicant was first intercepted, and that any risk that the intended recipient of the drugs or the applicant’s partner could have been alerted and acted to destroy or conceal the drugs at the unit was “either lost or rationally never existed”.
42. [42]
    On the evidence, SC Collins requested additional officers to assist them by the roadside at about 9 minutes and 30 seconds into the footage (after having found the drugs on the applicant, but before the phone or messages are found by SC Jones).  Those officers did not arrive until after 8.50 pm.   After placing the applicant into the custody of those officers, to be taken to the watchhouse, SC Jones and SC Collins decided to conduct an emergent search of unit 8.  They travelled directly there, but had to wait about 15 minutes for another backup crew to arrive, ultimately commencing the search of unit 8 at 9.23 pm. 
43. [43]
    I accept the evidence of the police officers that this was a busy night, on which it was difficult to get a backup crew.  That is reinforced by the fact that it was officers from the child protection unit who were sent to assist with the search of unit 8.  The reasons SC Jones and Collins gave for not going into unit 8 without backup, given what they had learned about the applicant’s history, were sensible and understandable.  That it took some time to arrange a crew to take the applicant into custody, and then to arrange another backup crew to assist with the search, does not call into question the reasonableness of the officers’ grounds for suspecting that there were drugs in unit 8 and that there was an imminent risk of those drugs being concealed or destroyed.  It simply reflects what was the practical reality on the night.  I find, on the evidence, that the search of the unit commenced as soon as was possible in the circumstances. 
44. [44]
    In my view, the grounds on which the officers formed their suspicion, both as to the likely presence of drugs in unit 8 and as to the risk of those drugs being concealed or destroyed if the search were not conducted immediately, were reasonable in the circumstances.  Therefore, the search of unit 8 was lawful.
45. [45]
    In light of that finding, it is unnecessary to consider the exercise of the public policy discretion, including the applicant’s submissions in relation to the application of s 25 of the Human Rights Act 2019 (Qld) in that context. 
46. [46]
    The application for a ruling excluding the evidence obtained from the searches of the applicant, the car, the phone and the unit at the motel is therefore refused.