R v Jones[2022] QSCPR 14

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 grams, and one count of unlawful possession of the dangerous drug alprazolam.  The offences are alleged to have been committed on 4 September 2021.  The evidence giving rise to these charges was obtained as the result of a search of the applicant, and a bag(s) in her possession, conducted by police on that date.

2. [2]
   The applicant applies for a ruling under s 590AA(2)(e) of the Criminal Code that the evidence obtained as a result of the search – namely, the drugs – be excluded.
3. [3]
   The applicant submits the search carried out by police was unlawful because the circumstances asserted by the 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 a person under s 29 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]
   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—

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

5. [5]
   By s 30(1)(a), 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.
6. [6]
   The evidence before the court for the purposes of this application comprises the written statement from the relevant police officer, Senior Constable Maher, as well as the footage recorded by the body-worn camera he used on the day and a still shot from the “dashcam” footage from the police car he was driving.  There is also a statement from another police officer, Constable Hinds, but it was agreed he came onto the scene as, or after, officer Maher had decided to detain and search the applicant, and so his evidence was not relevant to the central issue to be determined.
7. [7]
   Senior Constable Maher’s evidence is that at about 4.50 pm on the day in question he was in a police car, by himself, when he heard over the radio a message about a “job”.  According to his statement, the job details were that there was a disturbance between two females and a male person involving a vehicle being used “to block them walking and driving up on the footpath”.  He drove to the relevant location to assist other officers.
8. [8]
   As he was on the way, he heard more information over the radio, advising that the incident was now occurring in Hollywood Place, and that the females involved were described as being one with blonde hair and one with dark hair being heavy set and carrying shopping bags.
9. [9]
   As he entered Hollywood Place, from Studio Drive, the officer saw two women who matched the description of those mentioned in the job.  One, the applicant, was holding a green Woolworths bag; and the other, named Latoa, was carrying two white “EB Games” bags.  

10. [10]
    The officer observed the two women walking on the grass footpath beside the road.^[1]  He pulled the police car over to the side of the road, wound down the passenger window (by pressing the button on the driver’s door), and tried to start a conversation with them, by saying something like “hey, how are you going”.
11. [11]
    The officer says the women said something like “hey”, but did not stop; they kept walking past him.
12. [12]
    The officer turned his head and saw that the women then turned down a driveway, to the rear of is car.  He reversed the police car, about 30 m, to the driveway; parked and got out of the car.
13. [13]
    At this point he called out “hey” or something like that again.  He activated his bodyworn camera as the women approached him, coming back up the driveway.
14. [14]
    The footage^[2] shows the applicant walking up the driveway towards the officer first, with her friend, Latoa, coming up behind her.  The friend is now holding all three bags, the green bag and the two white bags.
15. [15]
    The applicant walks up to the officer.  In the footage, the officer can be seen holding the Qlite device, but his evidence was that he saw no relevant information on it at this stage.  He says that he asked the applicant her name and she provided it.
16. [16]
    Latoa can be seen, coming up the driveway behind the applicant, and she places the three bags beside, and slightly behind, a large brick structure, which contains letter boxes for the units located there.  The officer’s evidence was that he observed Latoa to be looking up at him as she did so, and to appear to quite carefully place the green bag under the two white bags.
17. [17]
    Having put the bags down, Latoa approaches the applicant, holding a can of drink.  The applicant takes a sip and then hands it back.  The sound on the footage starts to work at this point in the recording (consistent with the usual buffer).
18. [18]
    Latoa takes the drink and walks back to the letterbox structure, leaning against the opposite end of it (to where the bags are located) and appears to pull out a bag of tobacco to roll a cigarette.  The applicant is nearest to the officer.
19. [19]
    The officer asks Latoa what her name is, and she provides it.   He then asks both of them “what have you guys been up to today?”.  They reply “not much”, or words to that effect.
20. [20]
    The officer then asks “where are you coming from?”, pointing in the direction from which they had come.  The applicant says “just down there”; to which the officer says “that’s a dead end street, so which direction?”.  The applicant says something to the effect of “there’s a cut through that goes to the community centre”.
21. [21]
    The officer then asks where they are heading to.  The applicant says they are going to Helensvale train station.
22. [22]
    The officer questions that, saying that when he had (first) seen them, they were walking down “here”, pointing to the drive way.  This is in a context where the train station is, on the evidence,^[3] in the opposite direction, across the highway, just under 3 km away.
23. [23]
    The applicant responds by saying “oh yeah, we’ve got a mate that used to live here but we’re not sure if she still does…”.   The emphasis can be heard in the recording.
24. [24]
    At that point, the officer identifies himself by name and says that he is detaining them both for a search, saying that he suspects they have got dangerous drugs on them.
25. [25]
    In his oral evidence before the court, Senior Constable Maher said that, from his observation of Latoa, he believed she was under the influence of drugs.  This was based on how her eyes looked, her behaviour and mannerisms, that she was slow with answering questions and her body movements were jerky.  He did not refer to this in his written statement, which was made on 10 September 2021.  In cross-examination the officer said that these were his observations, which could be seen in the footage, which was attached to the statement (therefore, by inference, that he did not need to write them down in the statement).
26. [26]
    Counsel for the applicant submitted that these observations were only added by the officer after the fact, to bolster the explanation of the basis of his suspicion, once the lawfulness of the search was challenged.  The absence of any mention of these observations of Latoa in the officer’s written statement does cause me to doubt somewhat the reliability of his evidence that this was part of his thought process at the time.  It is to be expected that, if it was, he would have recorded it in his statement made shortly after the event.  However, having said that, I did not form the view that he was being dishonest in giving his evidence; his credibility was not really challenged in cross-examination.  On the whole, I accept his evidence as truthful, although for the purposes of determining this application do not place weight on this additional evidence, not mentioned in the statement.
27. [27]
    Officer Maher said that he formed the suspicion that he did because he was reasonably confident the applicant and Latoa were being deceptive, trying to avoid him and appeared to be trying to hide something – having regard to the fact that they kept walking when he stopped the car initially; and then went down the nearby driveway just past the police car; that by the time they were walking back up the driveway, Latoa had all three bags in her hands, and then appeared to be trying to cover up one of them when putting them behind the letter box structure; and then having regard to what they said in answer to his questions, which he did not regard as plausible because:

    1. the train station was in the opposite direction to the driveway they had walked down; and
    2. the explanation that they had a mate who used to live there, did not sit well with why they would walk down the driveway.
28. [28]
    Upon the eventual search, among other things, a quantity of methylamphetamine was found in the green bag.
29. [29]
    On the evidence, Senior Constable Maher did have an actual suspicion that the two women, the applicant and Latoa, may have drugs on them.  The facts grounding that suspicion were, in combination, the matters set out in paragraph [26] above. The question is, for the purposes of s 29 of the PPRA, whether his suspicion was reasonable.
30. [30]
    The relevant principles were summarised by Dalton J (as her Honour then was) in R v Fuentes^[4] 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.^[5]  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.^[6]  The facts must be sufficient to induce the suspicion in the mind of a reasonable person.^[7]  The suspicion must be reasonable, as opposed to arbitrary,^[8] irrational or prejudiced.” [underlining added]

31. [31]
    As Applegarth J said in R v Morrison^[9] 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.”

32. [32]
    Those observations apply equally to s 29, in which the same language is used.
33. [33]
    Counsel for the applicant submitted that the officer formed his purported suspicion as a result of “the applicant’s responses to [his] questions about her plans for that afternoon and the direction she was travelling”.  On that basis, she submitted this case is like R v Paull^[10] in which Henry J ruled that a search conducted in circumstances where the applicant was observed to be walking fast late at night when no one else was around, was unlawful as “a pedestrian walking quickly late at night in the CBD when not a lot of other people were about walking” was not a sufficient factual basis to ground a reasonable suspicion.^[11]

34. [34]
    This case is not like Paull, in my view.  There are a number of additional factors present, starting with the fact that the applicant and Latoa kept walking when the police car first pulled over and the officer tried to speak to them, and then turned down the nearby driveway, immediately past the police car.   Whilst the applicant and Latoa were not obliged to stop when the police car first pulled over and officer Maher called out to them, it does not follow that it is unreasonable for the police officer to have his suspicions aroused, by that fact, and the fact that they then went down the nearby driveway behind his car.  Taken together with their answers to his general questions about where they were heading, it was reasonable for the officer to form a suspicion that they were trying to avoid him, and trying to hide something.
35. [35]
    Looked at in isolation, each factor may have been capable of innocent explanation, and no one factor would be sufficient.  But when taken together, the combination of circumstances would, I find, have been sufficient to induce a reasonable suspicion in the mind of police officer in those circumstances.^[12]
36. [36]
    Even if I had reached the opposite conclusion, that the suspicion held by officer Maher was not reasonable, I would decline to exclude the evidence in the exercise of my discretion.  This is not a case in which there was a deliberate or even reckless disregard of the law, as submitted for the applicant.  Officer Maher, I accept, honestly held the suspicion that he did and believed that he had the power to detain and search the applicant (and Latoa).  If I had found that he was mistaken in that assessment, I would find in any event that he acted in good faith.  The evidence obtained from the search is cogent, and its cogency is not affected by the nature of the search.  The evidence is critical to the proceeding, as the prosecution depends entirely upon it.  The offence of aggravated possession of methylamphetamine is serious (the allegation being that the applicant possessed 5.511 grams of pure methylamphetamine, for a mixed commercial and personal use purpose).  There is no suggestion that the conduct of unauthorised searches is encouraged or tolerated by those in higher authority in the police force.^[13]  And, unlike Paull, I would not regard the exercise of the discretion in favour of admitting the evidence, in the circumstances of this case, as giving curial approval to inappropriate incursion by police on the liberty of citizens. 
37. [37]
    For those reasons, the application is refused.