SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant is charged on a six count indictment. All of the offending is alleged to have been committed on 26 July 2021 at Goodna. The counts may be conveniently set out as follows:

2. [2]
   The applicant initially submitted that all counts arose out of the search of the applicant’s car on 26 July 2021 at 8pm.^[1] Ultimately, the applicant submitted that there had been unlawful searches of the applicant and his car and the evidence obtained as a result of those searches should be excluded from any trial.^[2]
3. [3]
   The Crown submitted that the searches were lawful and that, even if the Court were to determine otherwise, the evidence obtained should be admitted as a matter of discretion.

Background matters

4. [4]
   At the start of the hearing, the Crown tendered a statement of facts. The applicant’s counsel accepted that, for the purpose of this application, the statement of facts was agreed.^[3] 
5. [5]
   The statement of facts materially reads as follows:^[4]

“Facts

2. On 26 July 2021 at approximately 8:00pm, police were conducting patrols of the Goodna area and located a grey Nissan Pathfinder situated in Richardson Park. The [applicant] was the only occupier of the vehicle.
3. The [applicant] appeared evasive when questioned by police, and displayed several indicia of recent drug use. The acrid aroma of Cannabis was emanating from the vehicle, and the [applicant’s] eyes were glassy in appearance. Police subsequently detained the [applicant] and commenced a search of the vehicle and his person.
4. The following items were located as a result of the search:
   • $810 in Australian currency;
   • A black handheld taser from the [applicant’s] backpack (Count 4);
   • A quantity of dangerous drugs stored in a concealed compartment at the footwell; 
   • A further quantity of dangerous drugs stored under the steering wheel column;
   • 49 Suboxone films;
   • 5.9 g green leafy material wrapped in;
   • 2 yellow Tadalafil tablets;
   • 1 green Bromazepam tablet;
   • 2 spoon utensils; (Count 3)
   • Digital scaled; and (Count 3 cont)
   • A quantity of unused clip-seal bags.

Possession of Dangerous Drugs

5. Examination of the dangerous drugs located in the [applicant’s] car and on his person determined the following drugs were present in the following amounts and purities (where applicable):

Supply of Dangerous Drugs

6. Police seized the [applicant’s] phone and located messages relating to the supply of dangerous drugs.
7. On 26 July 2021, the [applicant] supplied cannabis to a contact saved as ‘Cloe.’ On the same date, the [applicant] supplied methylamphetamine to a contact saved as ‘Zak.’

Arrest and ROI

8. The [applicant] advised police during the search that he smoked ‘ice’ that morning. The [applicant] stated that ‘it is all mine’ referring to the items located in the car. He further identified a number of the dangerous drugs as police questioned him in relation to them.
9. The [applicant] was transported to the Goodna Police Station following the execution of the search warrant.
10. The [applicant] participated in a recorded interview. He explained the text messages which form the basis of counts 5 and 6. He advised police that ‘a 50’ is cannabis and that ‘one of other’ (sic) is referring to methylamphetamine.

Commerciality 

11. The Crown relies on the following to establish that the [applicant] possessed the dangerous drug methylamphetamine for the purpose of supplying it to others:

• Unused clip-sealed bags;
• Scales:
• The text messages located on the defendant’s phone relating to an earlier supply;
• The quantity of methylamphetamine (in excess of the Schedule 2 amount but less than the Schedule 3 amount);
• The purity of the methylamphetamine, being 73.62%.”

6. [6]
   The police officers conducting the patrol were Officers Salt, Costelloe and McDonald. Officers Salt and Costelloe gave oral evidence and were cross-examined. No adverse inference was sought to be drawn by reason of Officer McDonald not having given evidence. It was common ground that Officer Salt was the arresting officer and the officer who exercised any relevant power to search.^[5]

The evidence of the police officers

7. [7]
   The agreed statement of facts relevantly notes that, when questioned by the police, the applicant “appeared evasive” and “displayed several indica of recent drug use” and “his eyes were glassy in appearance”. 
8. [8]
   Officer Salt gave evidence that prior to detaining the applicant, he had formed the belief that the applicant was under the influence of drugs.^[6] He was not challenged about this belief. At the relevant time, the patrol had entered an area known as the Goodna boat ramp, which was a specific area^[7] “well known for drug related activity”.^[8] Officer Salt observed a car in the vicinity of the boat ramp with a male (the applicant) seated in the driver’s seat.^[9] Officer Salt approached the car and the applicant initially wound down the window.  

9. [9]
   Officer Salt observed the following matters concerning the applicant’s demeanour, appearance and behaviour:

   1. as Officer Salt approached the car, the applicant was “moving around a lot”^[10] in a way which seemed “abnormal”;^[11]
   2. the applicant was fidgety^[12] and displayed “jerky motions”;^[13]
   3. the applicant had “glassy eyes”^[14] and “dilated pupils”;^[15]
   4. the applicant had “clammy”,^[16] or “oily or sweaty”^[17] skin; and
   5. the applicant was slow in his verbal responses to questions.^[18]
10. [10]
    In cross-examination, it was not suggested to Officer Salt that he had not in fact observed any of these matters. 
11. [11]
    Officer Costelloe gave evidence that he had observed the applicant to “seem nervous, fidgety…, glassy-eyed”.^[19] In cross-examination, it was not suggested to Officer Costelloe that he had not in fact observed these matters. 
12. [12]
    The conversation between Officer Salt and the applicant was recorded by Officer Salt’s body worn camera.^[20] The recording reveals that Officer Salt said to the applicant, words to the effect, that the applicant’s pupils were “exceptionally dilated”.^[21]
13. [13]
    The agreed statement of facts materially notes that “the acrid aroma of cannabis was emanating from the vehicle”. Officer Salt recalled that when the applicant wound down the window, he “could smell an acrid smell emanating from the vehicle that [he believed] to be fresh cannabis”.^[22] Officer Costelloe recalled smelling what he “thought was cannabis”.^[23] In cross-examination it was not put to either officer that they had not smelt cannabis. Rather, it was put to each officer that they had not mentioned the smell of cannabis to the applicant at or around the time of his arrest.^[24] The cross-examination did not suggest any reason why either officer should have raised this matter with the applicant at the time. 
14. [14]
    Prior to detaining the applicant and conducting any search, Officer Salt had regard to information on his police issued body QLiTE device. The material to which he referred may be outlined as follows:

    1. a BOLO (be on the lookout for) in place for the registration of the car;^[25] 
    2. a previous episode of unlicenced driving involving the applicant;^[26]
    3. an intelligence report (found by searching the applicant’s name) which revealed that an informant had told police that drug dealing had been observed at premises where the defendant resided with others.^[27]
15. [15]
    Some further matters may be observed. Officer Salt accepted that the car was not registered in the applicant’s name but was registered in a female’s name.^[28] The BOLO contained no reference to the applicant.^[29] The BOLO was for “drugs, weapons and property”.^[30] The applicant’s wife was the owner of the car and a resident of the premises where the applicant resided.^[31]
16. [16]
    Towards the conclusion of Officer Salt’s examination in chief, the following exchange occurred:^[32]

“[COUNSEL]: So before you searched the defendant and/or his vehicle, can you tell the court all of the factors that … formed your suspicion?

[OFFICER SALT]: So my reasonable suspicion that I formed – so it’s in a well known area, so location itself, it’s dark. He’s at a boat ramp with no other cars around, certainly no boat attached. He’s – we’ve then – upon approach, he was fidgety inside the car. As soon as I’ve – soon as he’s wound down his window, I could believe – I could smell what I believe was fresh cannabis to be coming out from inside the car. Then I – whilst speaking to him and engaging with him, I could see that his – he had, like, pale clammy skin, and it was – it was the middle of the winter out at – out at Goodna. He’d – he was – he had sweat. He had dilated – exceptionally dilated pupils. And then, I then proceeded to conduct further checks. I could – I checked the vehicle, which had a bolo on the vehicle to say that it had recent flags for drugs, weapons and property. Also then I conducted further checks on the defendant’s name, where – and there was recent intel to suggest that there was supplying of dangerous drugs from the address that he was listed at.”

17. [17]
    I found Officers Salt and Costelloe to be entirely credible witnesses. They each gave evidence in a calm, considered way and gave direct, responsive answers to questions. They appeared as witnesses who were intent on telling the truth. They were also witnesses who were prepared to make appropriate concessions.^[33] I accept their evidence which I have earlier outlined.

18. [18]
    Further, in relation to Officer Salt, I make the following specific findings about what he observed and had regard to prior to detaining the applicant and conducting the search:

    1. as Officer Salt approached the car, the applicant behaved abnormally by moving around a lot and he was fidgety;
    2. the applicant had dilated pupils;
    3. the applicant had clammy or sweaty skin, even though he was being spoken to at night in the middle of winter;
    4. the applicant was slow in his verbal responses to questions;
    5. there was an acrid smell emanating from the car which Officer Salt believed to be the smell of fresh cannabis;
    6. Officer Salt formed the belief that the applicant was under the influence of drugs;
    7. the belief that the applicant was under the influence of drugs, was a reasonable belief having regard to the matters referred to in sub-paragraphs (a) to (e);
    8. the applicant was driving a car which had a BOLO attached to its registration which related to drugs, weapons and property;
    9. the car was parked at night in the vicinity of a boat ramp (a specific area well known for drug related activity) and had no boat trailer attached;
    10. the applicant lived at a residence (with others) at which drug dealing had been observed.
19. [19]
    Before departing from the evidence, I should make reference to the following exchange which occurred during the cross-examination of Officer Salt:^[34]

“[COUNSEL]: Sergeant, it’s right to say that the exercise for power to search Mr Wright was exercised by you?

[OFFICER SALT]: Yes.

[COUNSEL]: It’s right to say that you first exercised your power to search his person.  Is that right?

[OFFICER SALT]: We stopped and detained.  He was intercepted, and we have spoken to him.  He’s in charge of the vehicle, so we detained the vehicle and any persons inside that vehicle.

[COUNSEL]: So after you’ve detained him - - -?

[OFFICER SALT]: Yes.

[COUNSEL]: That’s where you’ve asked him to step out of the vehicle?

[OFFICER SALT]: Yes.

[COUNSEL]: That right?

[OFFICER SALT]: Correct.

[COUNSEL]: And then you’ve searched him?

[OFFICER SALT]: Yes.

[COUNSEL]: It’s right to say that you have a separate power under the PPRA to warrantless search a person.  Is that right?

[OFFICER SALT]: There is.  But the – in this instance, where we detained the – the vehicle, and any persons inside that vehicle was detained.

[COUNSEL]: So am I right in understanding that you believe you were exercising a power to warrantless search a vehicle and to search the defendant as a consequence of that?

[OFFICER SALT]: Yes.

…

[COUNSEL]: All right.  So the reasonable suspicion that you referred to earlier was the reasonable suspicion to search the vehicle?

[OFFICER SALT]: Right.  So I – yes.  So, the reasonable suspicion is I believe that there was drugs or drug related items inside that vehicle.

[COUNSEL]: And as a result of the exercise of that power, you have searched the person?

[OFFICER SALT]: Yes.

[COUNSEL]: And do you believe that that is a power you’re entitled to exercise when you are searching a vehicle?

[OFFICER SALT]: Yes.

[COUNSEL]: Is that commensurate with your training?

[OFFICER SALT]: I’m sorry?

[COUNSEL]: Have you been trained - - -?

[OFFICER SALT]: Yes.

[COUNSEL]: In the way in which you’ve been trained to exercise your power to search a vehicle, are you trained that that also includes the persons inside the vehicle?

[OFFICER SALT]: I believe so.  Yes.”

20. [20]
    The applicant relied upon this evidence for the purpose of submitting that the only power to search exercised was a power to search the car as distinct from the person. The following submission was then put in writing on behalf of the applicant:^[35]

“5.When searching the Defendant and the vehicle, Senior Constable Salt (Officer Salt) ought to have exercised two powers; the power to search a vehicle without a warrant under Sections 31(1) and 32(c) of the Police Powers and Responsibilities Act 2000 (Qld)(PPRA), and the power to search a person without a warrant under Section 29(1) of the PPRA. The Crown conceded that both powers were required.

6. However, Officer Salt's evidence clarifies that the only power exercised at the time of the search was the power to search the vehicle, not the power to search the person. This creates a separate question on the present application. As such, the questions become:
   1. a.Was the exercise of the power under Section 31(1) of the PPRA based on a reasonable suspicion at the time the power of search was executed?
   2. b.Does the exercise of powers under Section 31(1) of the PPRA extend to the search of the person?
7. If the answer to (a) is no, then the entire search is unlawful. If the answer to (a) and (b) is no, the search of the person is unlawful, and the evidence found on his person (and his record of interview) is liable to exclusion.”

The Police Powers and Responsibilities Act 2000 (Qld)

21. [21]
    It is convenient to set out the relevant provisions of the Police Powers and Responsibilities Act 2000 (Qld) (‘the Act’).
22. [22]
    Section 29 of the Act relevantly provides:

“29 Searching persons without warrant

1. 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.

2. The police officer may seize all or part of a thing—
   1. that may provide evidence of the commission of an offence; or
   2. that the person intends to use to cause harm to himself, herself or someone else; or
   3. if section 30(b) applies, that is an antique firearm.”

23. [23]
    The “prescribed circumstances for searching a person without a warrant” are those specified in s 30 of the Act. They relevantly include that “the person has something that may be … an unlawful dangerous drug”.^[36] The expression “reasonably suspects” is defined in sch 6 (Dictionary) to the Act to mean “suspects on grounds that are reasonable in the circumstances.”
24. [24]
    Section 31 of the Act relevantly 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.
2. Also, a police officer may stop, detain and search a vehicle and anything in it if the police officer reasonably suspects—
   1. the vehicle is being used unlawfully; or
   2. a person in the vehicle may be arrested without warrant under section 365 or under a warrant under the Corrective Services Act 2006.
3. If the driver or a passenger in the vehicle is arrested for an offence involving something the police officer may search for under this part without a warrant, a police officer may also detain the vehicle and anyone in it and search the vehicle and anything in it. 
4. If it is impracticable to search for a thing that may be concealed in a vehicle at the place where the vehicle is stopped, the police officer may take the vehicle to a place with appropriate facilities for searching the vehicle and search the vehicle at that place.
5. The police officer may seize all or part of a thing—
   1. that may provide evidence of the commission of an offence; or
   2. that the person intends to use to cause harm to himself, herself or someone else; or
   3. if section 32(1)(b) applies, that is an antique firearm.
6. Power under this section to search a vehicle includes power to enter the vehicle, stay in it and re-enter it as often as necessary to remove from it a thing seized under subsection (5).”

25. [25]
    The “prescribed circumstances for searching a vehicle without a warrant” are those specified in s 32 of the Act. They relevantly include “that there is something in the vehicle that … may be an unlawful dangerous drug”.^[37] The expression “reasonably suspects” is defined in sch 6 (Dictionary) to the Act to mean “suspects on grounds that are reasonable in the circumstances.”
26. [26]
    The following relevant propositions can be distilled from the authorities:

    1. Suspicion and belief are different states of mind.^[38]
    2. The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief.^[39]
    3. Suspicion is a state of conjecture or surmise where proof is lacking.^[40] It is more than a mere idle wondering and is a positive feeling of actual apprehension.^[41] Hence, a reason to suspect that a fact exists, is more than a reason to consider or look into the possibility of that fact’s existence.^[42] The suspected fact or facts must be more than a mere possibility.^[43]
    4. There are two elements to a “reasonable suspicion”. One element is subjective and the other objective.^[44] 
    5. A suspicion is a state of mind concerned with the circumstances as they appear to the holder to be at the relevant time rather than the circumstances as they actually are at that time.^[45]
    6. Not only must the police officer personally form the suspicion at the time when the decision is made to detain and search, the suspicion must be objectively reasonable in that it must be based on facts which would create a reasonable suspicion in the mind of a reasonable person.^[46]
    7. The statutory language “reasonably suspects” means that there must be reasonable grounds for the state of mind, suspicion. That is, sufficient facts must exist to induce that state of mind in a reasonable person.^[47] Whilst there must be a factual basis to reasonably ground the suspicion, it is not necessary for there to exist proof of the fact reasonably suspected.^[48] The suspicion must be reasonable as opposed to arbitrary.^[49]
    8. The onus is on the Crown to prove the existence of a proper factual basis for the suspicion and to do so on the balance of probabilities.^[50]

Consideration as to whether there has been an unlawful exercise of power

27. [27]
    Having regard to the circumstances as they appeared to Officer Salt at the relevant time, I am satisfied that, from a subjective and objective perspective, there existed a reasonable suspicion that there was something in the car or on the person of the applicant that may be an unlawful dangerous drug. Those circumstances comprised the physical appearance of the applicant, his behaviour, the location of the applicant’s car at night in the vicinity of a boat ramp (a specific area well known for drug related activity) and had no boat trailer attached, the smell of cannabis emanating from the car, the fact that the car was the subject of a BOLO concerned with drugs and the fact that the applicant resided at premises where drug related activity had been observed.
28. [28]
    Officer Salt appears to have relied upon s 31 as providing the lawful basis for his search of the applicant’s person. That was a strict legal error because the power to search the applicant’s person fell to be exercised by reference to s 29 of the Act. In my respectful view a search of the applicant was not countenanced by s 31 as the applicant was not within the meaning of the expression “anything in [the vehicle]” as it appears in s 31(1)(c) of the Act.^[51] I find that, to the extent that Officer Salt relied upon s 31 as the basis for searching the applicant’s person, the search was unlawful.
29. [29]
    The agreed statement of facts and the evidence left it unclear as to what items had been recovered by reason of the search of the car as distinct from the search of the applicant’s person. I am not in a position to differentiate between the items recovered during the search of the car as distinct from the search of the applicant’s person.  

Exercise of discretion

30. [30]
    Despite the search of the applicant having been unlawful, whether evidence obtained as a result of a search is admissible or inadmissible depends upon the exercise of a discretion.
31. [31]
    The public policy discretion to exclude unlawfully obtained evidence requires the weighing of competing public interests. In R v P, Applegarth J observed:^[52]

“The public policy discretion to exclude unlawfully obtained evidence weighs competing public interests. One is ‘the desirable goal of bringing to conviction the wrongdoer.’ Another is ‘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 discretion ‘is necessary to protect the processes of the courts of law in administering the criminal justice system.’ This judicial integrity principle holds that courts should not admit the tainted fruits of unlawful conduct, lest the administration of justice be brought into disrepute. The discretion also serves the policy of deterring unlawful conduct by those entrusted with powers of law enforcement.”

32. [32]
    In R v Ireland, Barwick CJ said:^[53]

“Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.”

33. [33]
    In Bunning v Cross, Stephen and Aickin JJ listed a number of considerations which arise in the exercise of the discretion to exclude unlawfully obtained evidence.^[54] The joint judgment in Bunning v Cross emphasises that the judicial discretion is not to be fettered by rules and cannot be considered in the abstract divorced from the circumstances of any given case.^[55] Some of the considerations which have usually been considered relevant, may be set out as follows:^[56]

    1. was the unlawful act inadvertent; or
    2. was it a deliberate flouting of the law; and
    3. was the misconduct serious; and
    4. does the failure to comply with the law affect the cogency of the evidence; and
    5. how serious is the offence charged; and

6. are the powers of the police deliberately circumscribed by the legislation to protect the public.

34. [34]
    The weight given to any particular factor, again depends on the circumstances of the case. In R v Versac, Applegarth J observed:^[57]

“Australian courts have recognised a number of relevant factors in the exercise of the public policy discretion to exclude evidence. Some factors support exclusion, whilst others support admission. The factors include:

1. whether the unlawfulness was a deliberate or reckless disregard of the law, as distinct from a mere oversight or accidental non-compliance with the law;
2. the cogency of the evidence and whether the nature of the illegality affects the cogency of the evidence so obtained;
3. the importance of the evidence in the proceeding;
4. the nature and seriousness of the offence;
5. the nature of the unlawful conduct;
6. whether such conduct is encouraged or tolerated by those in higher authority in the police force; and
7. how easy it would have been to comply with the law.”

35. [35]
    I have found that Officer Salt was a truthful and credible witness. I have also found that circumstances existed to found a reasonable suspicion that there was something in the car or on the person of the applicant that may be an unlawful dangerous drug. That reasonable suspicion was sufficient to warrant the search of the car and the applicant’s person. Whilst Officer Salt may have been mistaken in considering that s 31 of the Act entitled him to conduct a search of the applicant’s person, the circumstances which existed at the time countenanced a search of the applicant’s person in addition to the car.
36. [36]
    The evidence obtained on the search is clearly important to the prosecution. The importance of the evidence is a factor favouring its admission. The drugs seized, as outlined in the agreed statement of facts, include a significant quantity of methylamphetamine. The search provides a basis for an allegation of offending involving the aggravated possession of a sch 1 drug. There is a strong public interest in identifying those who engage in this type of serious offending. The evidence obtained is cogent and not affected by the unlawful nature of the search. In the circumstances of this case, I have formed the view that this aspect should be given some weight in favour of its admission.^[58]
37. [37]
    Ultimately the competing public interests have to be weighed. There is a public interest in convicting those who commit criminal offences. There is also a public interest in ensuring that police observe the law. As Applegarth J observed in R v P, the diminution in respect for the law and the loss of public confidence in the courts is  greater where the unlawful conduct is deliberate or reckless.^[59] Here the conduct at the scene involved an honest mistake made in circumstances which established a reasonable suspicion that unlawful drugs may have been in the car or on the person of the applicant. Ultimately, I have formed the view that, taking all of the circumstances into account, and weighing the competing considerations, in this particular case the discretion should be exercised so as to not exclude the evidence obtained from the search of the car and the applicant.

Order

35. [35]
    The application filed 21 December 2022 is dismissed.