R v Aloia[2022] QSCPR 1

SUPREME COURT OF QUEENSLAND

1. [1]
   At about 9.00 pm on Thursday 27 August 2020, the applicant was driving his car through Innisfail when he was intercepted by police investigating allegations the vehicle had major defects.  In the ensuing events police inspected the vehicle and administered roadside alcohol and drug tests upon the applicant.  The police detained the applicant and required him to move out of the vehicle for both him and his vehicle to be searched.  When searched the applicant was found to be in possession of 33.6 grams gross (24.2 pure) of MDMA which he said he had purchased in Tully for $1,800.
2. [2]
   The applicant was charged with one count of possessing dangerous drugs in excess of two grams. He makes application for the exclusion from evidence at his trial of his possession of the unlawful items and what he said of it.  He relies upon the ground that the searching of the applicant was unlawful, and in consequence, the evidence an unlawful drugs was found and what the applicant said of it was unlawfully obtained. 
3. [3]
   The legal foundation for the ruling sought by the applicant, one of high public policy, was explained by Mason CJ, Deane and Dawson JJ in Ridgeway v R.^[1]    In summary it is 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.  The rationale of the discretion is that convictions obtained by means of unlawful conduct may be obtained at too high a price so that the desirable goal of bringing to conviction the wrongdoer may be outweighed by 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.  It therefore is necessary to firstly determine whether the evidence was unlawfully obtained and, if so, whether the discretion, thus enlivened to exclude it, should be exercised. 
4. [4]
   Two officers were involved in the interception though only one of them, Constable Clarke provided a witness statement.  Constable Clark was the only witness to give oral evidence in the application.
5. [5]
   At approximately 9.00pm Constable Clark received a call from another officer within the Innisfail Road Policing Unit asking him to be on the lookout for a blue Holden Commodore utility which looked to have some major defects.^[2] Approximately a minute later Constable Clarke observed a blue Holden Commodore utility driving westbound along Palmerston Drive. Constable Clarke said he intercepted the vehicle “to make inquiries about if this was the vehicle that I was told to lookout for.”^[3]
6. [6]
   It is not disputed the vehicle had some defects.^[4]  Nor is it disputed police were entitled to intercept the vehicle to inspect it and to administer roadside alcohol and breath tests upon the applicant.^[5] 
7. [7]
   After being pulled over the applicant remained seated in the driver’s seat and produced his driver’s licence to Constable Clarke on request.  Constable Clarke’s witness statement described what then followed in these terms:

“7. I had a conversation with the defendant regarding his vehicle and a few defects that I observed.  Whilst speaking to the defendant, I observed him to be drinking from a can quite rapidly, which indicated to me that he was nervous.  I asked him where he had come from and he told me he had come from Tully.  He stated that he had just gone down to see his Grandfather.  I conducted a Roadside Breath Test which also returned a negative result.  I also conducted a roadside Drug Test which also returned a negative result.

8.   Whilst I was running the drug test, I also conducted checks into the defendant using the police system.  I observed numerous drug related occurrences and intelligence regarding the defendant.  Due to this and the behaviour of the defendant, I detained him for a search and activated my body worn camera.”

8. [8]
   A police recording reveals that, a time when he was still waiting for the result of the drug test, Constable Clarke asked the applicant, “Is there anything in the car that you shouldn’t have.  Is there any drugs, weapons, money, anything like that?”  The applicant responded there was not.  Constable Clarke then told the applicant, “I’m gonna detain you for a search of the vehicle. … So I’ll just get you to jump out”. 
9. [9]
   The applicant complied and on alighting from his car was told to move to the kerbside area proximate to the passenger side of the front bonnet.  Constable Clarke then said, “Now before I do a search what I’m gonna do is conduct a search of yourself as well.”  He directed the applicant to place his hands on the bonnet.  When asked if had anything to declare the applicant asked, “May I see your search warrant, please?”.  Constable Clarke responded he did not need one and the applicant said, “I’m pretty sure you do”.  Constable Clarke said, No, I don’t, if I have a reasonable suspicion then I don’t need a search warrant.”  After police then moved to commence the search the applicant acquiesced in that process and the aforementioned drugs were revealed to be secreted down the front of his pants.
10. [10]
    Constable Clarke’s reference to “reasonable suspicion” was apparently a reference to the reasonable suspicion referred to in the power to search without warrant provided for in 29(1) Police Powers and Responsibilities Act 2000 (Qld) as follows:  

“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.”

11. [11]
    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.^[6]
12. [12]
    Section 30 lists the prescribed circumstances referred to in s 29. These 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… the administration of a dangerous drug.   
13. [13]
    A curious feature of the case it that it was not apparent from what Constable Clarke told the applicant or from his witness statement, just what it was he supposedly had a reasonable suspicion of.  He provided an addendum statement dated the day before the hearing of the present application.  It alluded to his first statement’s reference to him conducting checks into the defendant using the police system and observing numerous drug related occurrences and intelligence regarding the defendant.  It then elaborated:

“3. Whilst completing these police checks, I also observed a caution regarding the defendant.  It stated ‘Drug user – search at every opportunity’.

4.  This caution helped form my reasonable suspicion and as such, the defendant was detained for a search.”

14. [14]
    The addendum statement still did not state what prescribed circumstance the alleged reasonable suspicion related to.  Its content supports the implication it was that the applicant had something which may be a dangerous drug.  Even when Constable Clark testified, he seemed equivocal on the topic in evidence in chief:

“What was the reasonable suspicion?---I believed that the defendant at the time may’ve been hiding something in the vehicle.  After the conversations with him – sorry – after the conversations with him roadside as well as the intelligence that we had on the system, I believed it was reasonable that the defendant may be hiding something in the vehicle or on his person.

All right.  If we can just unpack that a little.  You refer to “hiding something”; what was the something that you thought?---At that stage I didn’t know.  The intelligence that was on the system said that he – there are drug trafficking or supplies.  It could’ve been anything at that stage.  I didn’t know.  That’s why I asked him if there was any weapons or drugs or money on you or the vehicle.

So you refer to drugs.  Did you suspect there might be drugs in there?---Possibly.”

15. [15]
    Questioning then turned to other matters and the topic was not revisited, save for it being clarified in cross-examination that he had not earlier noticed anything material about the car’s content when viewing from outside it.  The high point of the above exchange seems to be that Constable Clark suspected there may be unlawful drugs in the vehicle. 
16. [16]
    As to the foundation for that suspicion it is said to include what the applicant saw when he checked the police records of drug related occurrences and intelligence regarding the applicant as well as the applicant’s conduct.
17. [17]
    It will be recalled the only such conduct articulated as causing suspicion in Constable Clarke’s first statement was that the applicant was drinking from a can quite rapidly when spoken to by Constable Clarke.  This supposedly indicated to Constable Clarke that the applicant was nervous.  Even if that were a reliable indicator of nerves it was occurring in the context of the applicant having been intercepted because his car had defects, an inherently anxious circumstance.  But it is not a reliable indicator of nerves.  Drinking “quite rapidly” may occur for an array of innocuous reasons.  The most obvious is to quench thirst.  Another obvious reason here is that if the applicant had opened and was drinking from a can of drink but been interrupted in consuming it by the intercept, he may have wanted to finish it off rather than let it get warm or flat during the interruption.  There was nothing elaborated upon factually about the applicant’s drinking as to why its speed indicated the applicant was nervous.  In the absence of any such elaboration I do not accept drinking “quite rapidly” is conduct which could have reasonably grounded, or contributed to reasonably grounding, a suspicion that the applicant had something which may be a dangerous drug. 
18. [18]
    In his oral testimony Constable Clark gave evidence of two new reasons why the applicant’s conduct caused him to have his allegedly reasonable suspicion.  That evidence did not appear to be reliable. 
19. [19]
    One of the new reasons was that the way the applicant answered questions caused the officer to deduce the applicant was being evasive yet the officer purportedly could not recall any substance about what was said to result in this deduction. Nor did he have a recording, not even notes of, what he said. 
20. [20]
    The other new reason was Constable Clark thought 9pm was a suspicious time of night to be returning, as the applicant said he was when asked, from visiting his grandfather in Tully, about 40 minutes drive away.  The officer’s first statement did allude to the applicant having said that but made no mention of it being one of his reasons for his allegedly reasonable suspicion.  Except for Constable Clarke explaining he used to visit his grandparent in the afternoon, it remains a mystery why he allegedly thought it was “a bit unreasonable” and “a little bit suspicious” to be seeing a grandparent in a visit which would have ended at about 8.20 in the evening.  There is nothing about that time of night rendering it an unusual time to leave from visiting a grandparent.
21. [21]
    Further to these factual weaknesses the officer provided no credible explanation when asked why he would have left these two reasons out of his first and addendum statement.   I cannot accept the evidence of the two new reasons is reliable.
22. [22]
    This then leaves, as the only potentially viable foundation for the requisite reasonable suspicion, the information the officer learned from his checks of police information about the applicant.  That information fell into two categories. 
23. [23]
    The first police information category was the intelligence entry, “Drug user – search at every opportunity”.  The second was the occurrence records, the disclosed content of which indicates:

• on 29 June 2019 the applicant was intercepted for a roadside drug test which returned a positive result for MDMA;
• on 12 July 2019 police executed a search warrant of an address where they found the applicant smoking a bong containing cannabis and the applicant was offered and accepted drug diversion; and
• on 4 November 2019 the applicant was intercepted for a roadside drug test and he returned a positive result for MDMA.^[7]

24. [24]
    Constable Clarke testified the timing of the entry of the first category of information corresponded to the timing of the occurrence record of 12 July 2019. 
25. [25]
    The parties were invited to make further submissions as to relevant authorities in support of police use of their intelligence information about civilians.  The cases of R v Jaudzems^[8] and R v Keen^[9] were cited.  The unremarkable principle emerging from those cases is that police intelligence information may found a reasonable suspicion of a prescribed circumstance, though whether it has the force to do so will depend upon the individual circumstances of each case. 
26. [26]
    In Jaudzems the information had been received 13 days earlier form a source described in the intelligence as “open and honest” and was to the effect the suspect was then a large scale supplier of ecstasy to the night club market in Cairns, supplying the product via bouncers. It Keen the information was even more recent and persuasive.  It was information given at a police briefing earlier the same day to the effect the suspect was the target on an ongoing covert police surveillance operation in which telephone calls were being intercepted and that the suspect would be driving away from a property that afternoon with dangerous drugs.  In summary the recency and content of the information carried enough persuasive force to reasonably ground a suspicion the suspect at that time had something which may be a dangerous drug.
27. [27]
    In contrast the information here was not nearly as recent and was much more speculative in informing a prospective suspicion.  The most recent information was over ten months old.  Of the three offending events, only one involved being found in possession of drugs.  The other two involved returning a positive roadside test for the presence of MDMA, which suggests that, if this information really was acting on Officer Clarke’s mind, it is surprising he would not have waited for the outcome of the roadside drug test he had administered before concluding a search was justified.  It is difficult to avoid the impression the only genuinely influential information was the intelligence entry, “Drug user – search at every opportunity” and that it was the instruction to “search at every opportunity” which spurred the decision to search before bothering to wait for the outcome of the roadside drug test.  Of course the circumstances here did not mean there was an “opportunity” to search unless it arose lawfully.  Further there was no information about why a search should occur at every (lawful) opportunity, other than the words “Drug user”.
28. [28]
    The highpoint of the police information referred to seems to be the applicant was known to have used drugs on some occasions in the past.  There was nothing in the information of sufficiently recent or detailed content to indicate any particular factual probability capable of grounding a reasonable suspicion of a prescribed circumstance.
29. [29]
    It is to be borne in mind the requisite suspected prescribed circumstance here was that “the person has something that may be an unlawful dangerous drug”.  That it is a suspicion inevitably involves an element of uncertainty as to the existence of the suspected fact.  Nonetheless, the requisite suspicion is not that the person “may have” something that may be an unlawful dangerous drug, it is that person “has” something that may be an unlawful dangerous drug.  The distinction is subtle but stands as a protection against the misuse of mere knowledge that someone is known to have previously used unlawful drugs as constituting reasonable grounds for the requisite suspicion.  Such knowledge is not enough because it is too vague a basis to ground the temporally specific suspicion that the person is, at the particular point in time of police intervention, in possession of something which may be an unlawful drug.
30. [30]
    The bare fact the applicant had used illicit drugs in the past and was once caught in possession of illicit drugs did not provide reasonable grounds to suspect that he was in possession of something which may be an illicit drug then and there, at the scene of the vehicle intercept on the night in question.  For reasons already explained there was nothing about the innocuous factual circumstances at the scene which could rationally have elevated the force of the police information to grounds that were reasonable in the circumstances for suspecting the applicant was then in possession of something that may be an unlawful drug.
31. [31]
    The requisite reasonable suspicion was not held.  The search of the applicant was unlawful.  The evidence of the finding of the drugs and of the applicant’s consequential admissions was unlawfully obtained.
32. [32]
    It remains to consider whether the fruits of that unlawful search – the evidence of the possession of dangerous drugs and the consequential confessional information provided – should be excluded from evidence in the exercise of my discretion founded on public policy grounds.  Of that discretion it was observed by Mason CJ, Deane and Dawson JJ in Ridgeway v R:^[10]

“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”.

33. [33]
    The applicant’s possession of an aggravated weight of unlawful drug was of course a serious offence, although there is nothing before the court, to suggest that it is an unusually grave instance of that class of offence.  Further I am prepared to accept the unlawfulness was not deliberate and was likely an ill-considered reaction to seeing the police data base entry, “Drug user – search at every opportunity”.  Yet that feature of the case is also very concerning.   Police in the field need to know an instruction of that kind in a police data base does not negate their obligation to obey the law.  It is critical to laws designed to protect citizens serving their purpose that police apply their independent minds in making an assessment which must be made by them, not by an entry in a data base.  In this case such an entry seems to have been so determinative that having seen it the officer did not even bother to wait for the outcome of the drug test he had administered. 
34. [34]
    In my conclusion the undesirable effect of this court being seen as tolerating the circumstances prompting the unlawful search in this case materially outweighs the public interest in the conviction and punishment of the applicant.
35. [35]
    The evidence the subject of the application should be excluded.
36. [36]
    My order is:

1. Application granted.
2. The evidence of the applicant’s possession of unlawful drugs and what he said of them to police on 27 August 2020 is excluded from evidence at his trial.*

*Associate’s note: a nolle prosequi was entered following the making of these orders.