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R v Casemore[2023] QSCPR 21

SUPREME COURT OF QUEENSLAND

CITATION:

R v Casemore [2023] QSCPR 21

PARTIES:

R

(Respondent)

v

CASEMORE, Neale Graham

(Applicant Defendant)

FILE NO/S:

SC 81 of 2023

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED EX TEMPORE ON:

6 December 2023 

DELIVERED AT:

Cairns

HEARING DATE:

5 December 2023

JUDGE:

Henry J

ORDER:

1. Application granted.

2. The evidence of what was found during the roadside search of the vehicle driven by the applicant on 4 June 2022 is excluded from evidence on his trial on the indictment charging him with possession of methylamphetamine with circumstance of aggravation on that date at that place.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – SEARCH WARRANTS – SEARCH AND SEIZURE – where police pulled over the applicant because of a licence check – where the applicant’s vehicle was searched without a warrant – where police relied on the power in s 31(1) of the Police Powers and Responsibility Act 2000 – where police found 70 grams of a dangerous drug, cash and utensils in the applicant’s possession – where the applicant submits that the search was unlawfully conducted – where police did not have reasonable grounds for their suspicion of dangerous drugs – whether it is in the public interest to exclude evidence from the applicant’s trial

Police Powers and Responsibilities Act 2000 (Qld) sch 6, ss 31(1), 31(1)(c), 60

George v Rockett (1990) 170 CLR 104, cited.

R v Aloia [2022] QSCPR 1 [29-30], cited.

Bunning v Cross [1978] 141 CLR 54, 74, cited.

Ridgeway v The Queen [1995] 184 CLR 19, 31, cited.

COUNSEL:

C Peters for the respondent prosecution

R Logan for the applicant defendant

SOLICITORS:

Office of the Director of Public Prosecutions (Queensland) for the respondent prosecution

Legal Aid Queensland for the applicant defendant

  1. [1]
    In a roadside search of a vehicle of which the applicant was the sole occupant driver, police found about 70 grams gross of methylamphetamine, some scales, $2,360 cash and a pipe.  He has been charged on indictment with the aggravated possession of the methylamphetamine.  He alleges the search was unlawful and seeks a pre-trial ruling excluding the evidence obtained by it. 
  2. [2]
    It is not contended the initial stopping of the vehicle, purportedly for a licence check, was unlawful.  At 1 am on Saturday, the 4th of June 2022, two police, Sergeant M.R. and Senior Constable A.G. were in an unmarked police vehicle driving by a house in suburban Edmonton.  A utility was parked in the driveway.  The driver in the vehicle was speaking to someone standing beside the car.  The house was known to Senior Constable A.G. 
  3. [3]
    He assisted a police search there on 14 June 2017, when some methylamphetamine and drug utensils were found.  On 24 May 2020, he intercepted a vehicle leaving there and found methylamphetamine, utensils and cash in the ensuing search of the car that had left, a find which led, in turn, to the issue of various warrants and the arrests of some eight people, two for trafficking.  He executed a search warrant there on the 3rd of June 2020 finding a pipe, scales and a phone with drug supply messages in it.  The present events were two years later, but those past events explain why Senior Constable A.G.’s interest was piqued.
  4. [4]
    The police turned and doubled back, by which time the vehicle was driving away.  The police checked the vehicle’s registration as they drove.  It was registered to a man who was unlicensed.  They drove behind the vehicle, activating their vehicle lights and siren, and it stopped by the roadside. 
  5. [5]
    Senior Constable A.G. approached the vehicle.  He asked the applicant if he had his driver’s licence, explaining the reason they had pulled him over was that someone linked to the vehicle was unlicensed.  The applicant made a partly inaudible response, indicating that a person he referred to as Mick was impliedly the person the police were thinking of, and he produced his driver’s licence.  Senior Constable A.G. said he would just do some checks, then he walked off towards the rear of the vehicle, where he joined Senior Sergeant M.R. who checked information on her QLiTE pad.
  6. [6]
    Against that background, in light of s 60 Police Powers and Responsibilities Act 2000 (Qld), it would have been difficult for the applicant to contend it was unlawful to stop the vehicle to check whether the driver of a vehicle registered to an unlicensed owner was licensed. 
  7. [7]
    The events which followed, though, are much more problematic.  Senior Constable A.G. returned to the vehicle and the following exchange occurred: 

“All right.  Where - whereabouts did you just come from? --- Nah.  Just from a mate’s place around the corner.

Yeah.  And where were you going to? --- Eight Miltonia Street.  My house.

That’s your house? --- Yeah.

Okay.  Um, what I’m going to do, I’m just going to let you know.  So I’m Senior Constable [A.G.] from Cairns Tact Crime.  I’m just going to ask you to turn your engine off...I’m just going to detain yourself in the vehicle for a search - - -? -- Why?

-----for dangerous---? -- Why?

For dangerous drugs.  Okay.  So I get you to turn it off? --- Is there a reason for that?

I have a reasonable suspicion, yeah? --- All right.  Um.

That’s okay.  We’ll search, and if you’ve got nothing, then you’ll just go on your way? --- That’s [indistinct].

All right.  Mate, I’ll ask you to step out.  Do you have anything in the vehicle you want to declare? --- No, mate.  I don’t understand why I’m getting picked on.

We’re not picking on you specifically? --- Oh, mate, come on, just - - -

We do this to a lot of people.  All right.  So - - -? -- Like, if I had a positive swipe, then fair enough.

I’ll ask you just to go around here …”

  1. [8]
    By this time the applicant had alighted and moved compliantly to the rear of the vehicle where he waited while the vehicle search ensued, and the drugs and other items were found.
  2. [9]
    The application to exclude the evidence gained by that search requires consideration of two issues: 

1. Was the search unlawful? 

2. If so, should the evidence be excluded?

  1. [10]
    For the search to have been unlawful, it needed to comply with s 31(1) Police Powers and Responsibilities Act, which relevantly provides:

(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 – …

(b) detain a vehicle and the occupants of a vehicle;

(c) search a vehicle and anything in it for anything relevant to the circumstances for which the vehicle and its are detained.”

  1. [11]
    Senior Constable A.G. did not tell the applicant what his reasonable suspicion was, though he said they would be searching for dangerous drugs.  Evidently, the purported lawful foundation of the search was that Senior Constable A.G. reasonably suspected the prescribed circumstance listed at s 32(1)(c) of the Act, namely “that there is something in the vehicle that … may be an unlawful dangerous drug”. 
  2. [12]
    Schedule 6 of the Act 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.
  3. [13]
    What factual basis did Senior Constable A.G. have to reasonably ground the purported suspicion that there was something in the vehicle that may be an unlawful drug?  His witness statement nominates the following facts to explain why he decided to conduct a search:

1. the time of night; 

2. that the applicant appeared to be very nervous;

3. that the vehicle was registered to a male who had some previous drug intelligence and occurrences;

4. that the applicant also had some previous drug intelligence and occurrences;

5. that the address that the vehicle was parked at was where the officer had personally been at a number of search warrants where dangerous drugs had been located.

6. last time he observed a vehicle parked at that address, and then drive away, it led to the driver being charged with trafficking dangerous drugs.

  1. [14]
    It will be immediately apparent that facts 3 to 6 are of the same theme.  Fact 3, about the vehicle’s registered owner having some previous “drug intelligence and occurrences”, is bereft of further detail.  What intelligence?  What occurrences?  When?  Where?  It says nothing as to the likelihood of drugs being present at the time and place in question.  Fact 4, about the applicant’s “previous drug intelligence and occurrences,” suffers the same deficiency.
  2. [15]
    Fact 3 was evidently learned of when Senior Constable A.G. went behind the vehicle with the applicant’s licence to consult Senior Sergeant M.R. when she was consulting her QLiTE pad.  He could not have known any sooner, for he did not know who the driver was until then.  In that consultation phase, Senior Sergeant M.R. said, apparently of the applicant, “drug driving, possess utensils”.  That such information was evidently enough to earn the description “previous drug intelligence and occurrences” well explains the applicant’s expressed perception he was being picked on.  Again, the information says nothing as to the likelihood of drugs being present at the time and place in question.  This is a significant weakness.
  3. [16]
    The requirement of reasonable suspicion that there is something in the vehicle that may be an unlawful drug stands as a protection against the misuse of mere knowledge that someone is known to have previously used unlawful drugs or is associated with other such users as constituting reasonable grounds for the requisite suspicion.  As I observed in R v Aloia [2022] QSCPR 1 [29-30]:

“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.

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.”

  1. [17]
    Facts 5 and 6 pursue a similarly vague theme.  Their formation as a basis for suspicion appears to be the officer’s past knowledge of events over two years earlier at the house where the applicant had been seen on the night in question, and more specifically that once, over two years ago, Senior Constable A.G. intercepted a vehicle which drove from the house he had seen the vehicle driven by the applicant at.  Such an isolated event would need to have been repeated, and much more recently so, to have sensibly contributed to reasonably grounding a suspicion.
  2. [18]
    The emerging sense of the founding factual support for the suspicion is that it was just a roll of the dice, premised on the odds of someone who had once committed a drug offence and associated with others in the similar category, being in possession of drugs, being higher than for the citizenry generally.  Such a gamble is well short of a reasonable suspicion. 
  3. [19]
    Fact 1, that it was late at night, again is just an aspect of that probability reasoning, based on the kind of person that the police perceived the applicant to be.  We do not live in a police state.  There is not a curfew in place.  Obviously less traffic moves about suburbia late at night than earlier, but there is a very wide array of circumstances in which law-abiding citizens drive late at night in suburbia, particularly on a weekend, as this was.  One such circumstance is that which the applicant told the police of, namely that he was driving home from a friend’s place.
  4. [20]
    Counsel for the respondent, evidently alive to the weaknesses of facts 1, 3, 4, 5 and 6, emphasised the importance of considering the collective force of the nominated facts in weighing fact 2.  However, there is nothing specific to any of them, including fact 2, to which I will shortly turn, which gives their accumulation any particular force. 
  5. [21]
    It is a curious feature of the case that if Senior Constable A.G. really did think the facts he cites founded a reasonable suspicion of dangerous drugs being in the car, it did not likewise prompt the suspicion that the applicant would have dangerous drugs detectable in his body.  The six facts relied upon were quite undiscerning as to the prospect the applicant may have consumed drugs as distinct from the applicant might have been carrying drugs.  Yet no test for the presence of drugs, or for that matter alcohol, was performed.  That omission speaks volumes as to how compelling the six facts relied on in reality were.  It is difficult to avoid the impression that Senior Constable A.G.’s past good luck in intercepting a vehicle from the address in question, with all the discoveries and arrests it led to, was a strong motivating influence of the search.  It reinforces the sense this was a simple gamble, a playing of the odds in the hope of the big pay-off of drugs being found and broader criminal drug activity again being exposed.
  6. [22]
    I return finally to fact 2, which attracted much attention in evidence at the hearing.  Senior Constable A.G. elaborated upon the factual assertion that the applicant appeared to be very nervous earlier in his witness statement when describing the initial phase during which the applicant’s driver’s licence was produced.  The officer’s statement says:

“During this conversation, I observed that [the applicant’s] hands shook dramatically.”

  1. [23]
    The events in question were captured by the body-worn camera worn by the officer.  Its view of the applicant’s alleged hand movements in the cabin of the vehicle, where he was when called upon to produce the licence, is from a lower perspective than the view the officer’s eyes would have had, and thus does not catch as full a view of the applicant’s hand movements, particularly his low-down hand movements, as the officer would have had. Nonetheless, the applicant’s hands during this phase are visible at various times during the footage taken. For much of the time, his right hand appears in the vicinity of the driver’s side window ledge, where he was resting his arm, and his left hand appears resting on the steering wheel. There is then a phase where his hands reach down, apparently for his wallet, manipulating it in such a way as to be able to withdraw his licence from it. His right hand then re-emerges into view as it passes the licence over to the officer.
  2. [24]
    I accept some subtle shaking of the hands may have occurred, while they were in the view shown by the body-worn footage, that was so minor as not to be apparent on viewing that footage.  I do not accept, in light of that footage, that the hand movements seen by Senior Constable A.G. during this critical initial phase were dramatic.  To remove doubt, the officer in giving evidence mimicked the hand shaking he witnessed and the gestures he used of the hand shaking were indeed dramatic.  If they occurred within the range of view of the video footage, they would undoubtedly be obvious on a viewing of it.  They are not.  At one stage, the officer’s evidence suggested the hands were positioned out in front of him at about belly height, which would likely have placed the hands within range of view of the footage.
  1. [25]
    It is inherently implausible that, if the applicant’s hands were shaking as dramatically as the officer asserts, they would only have done so when they were low down, out of the range of view of the footage.  Furthermore, the officer testified that the dramatic shaking of the hands was actually occurring as at the time when the licence was passed to the officer, and no such dramatic shaking is apparent in the admittedly brief period during which that movement occurs within view of the camera.
  2. [26]
    Senior Sergeant M.R. was also called as a witness at the hearing.  Given that the video footage showed she only had a transient pause near the passenger side window, and during the first part of her evidence she appeared to indicate she did not make particular observations of the applicant until he had alighted from the car, her evidence appeared to be taking this matter nowhere.  However, at a later stage of her testimony, after the point was made that by the time she saw the applicant alight from the car, he had already been detained, she volunteered that she noticed the applicant’s hands shaking when he was in the car handing over the licence.  It is surprising that was not mentioned by her in the earlier phase of her evidence.  It is also noteworthy from the video footage that she must, after initially shining her torch into the passenger side window as the brief exchange between the applicant and Senior Constable A.G. was occurring, have walked around the rear of the vehicle and approached the driver’s side.  If she could have had any view of the handing over of the licence at that final stage of this first chain of events, it could only have been of the stage when the licence was entering into Senior Constable A.G.’s hands near the window ledge, not when the applicant was manipulating it further inside the cabin.
  3. [27]
    None of these obvious difficulties with the reliability of the police evidence as to the hand shaking means I outright reject the possibility that there may have been at least some perception, on the part of Senior Constable A.G. at least, of mild hand shaking.  However, it is unlikely to have been shaking of such a degree than was any greater than those many members of the populace who, in the normal course, have slightly less steady hands than others, particularly so in the context of having to manipulate a wallet to remove a licence from it – an inherently fiddly task involving much finger movement.
  4. [28]
    That the mild and innocuous hand movement which I am prepared to accept may have occurred may in turn have been wrongly perceived as shaking driven by nerves is a real risk in the minds of the suspicious.  Senior Constable A.G. was obviously interested in the vehicle the applicant was in from the beginning when he saw it outside what he was to later describe as a “drug house” when he spoke to his fellow officer.  As a police officer, he well knew of the need for the suspicion necessary to justify a search of the vehicle to be a reasonable one.  It appears he seized upon what may have been some moderate innocuous hand movements in order to fortify, in his own mind and in the mind of his fellow officer, that a search was justified.  So it is that when, after the licence was produced and he went and spoke with his fellow officer, he twice asserted of the applicant to Senior Sergeant M.R. that the applicant’s hands were shaking and that “He’s just come from a drug house.”  His comments were followed by him then asking the Senior Sergeant, “Can I go for it?”  The appearance and tone of that pivotal point portrayed an obvious awareness on the officers’ parts that the grounds to support the search were dubious.  I would add that in the same exchange, when Senior Constable A.G. mentioned the applicant’s hands were shaking, his fellow officer, who in this Court purports to say she had earlier seen that, responded, “Are they?”
  5. [29]
    In my conclusion, the applicant’s hands were not shaking to any abnormal or dramatic extent.  What little, if any, hand movement there was beyond when the applicant was manipulating his wallet to extract his licence, did not, in combination with the other facts I have discussed, provide a factual basis, objectively capable of reasonably grounding a suspicion that there was something in the vehicle that may be an unlawful drug.
  6. [30]
    It follows the search was unlawful.
  7. [31]
    It remains to consider whether the evidence of what was found in the search should be excluded from evidence at trial.  It is well settled that requires the exercise of my discretion on public policy grounds – see Bunning v Cross [1978] 141 CLR 54, 74.  In Ridgeway v The Queen [1995] 184 CLR 19, 31, Mason CJ, Deane and Dawson JJ observed of that discretion:

“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 approvement, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law”.”

  1. [32]
    It that exercise, it is obviously relevant that the possession in this case is of a large and inherently commercial quantity of methylamphetamine. It is unquestionably a serious offence and relates to a drug with notoriously pernicious effects upon out community. The later feature is at least somewhat moderated by the fact that the seizure has prevented the drugs from being distributed into the community.
  2. [33]
    On the other hand, the frequency with which applications like the present expose unlawful searches is concerning.  The police, of course, have a difficult job, but there exist many lawful, legislative means and powers at their disposal to investigate crime, some of which involve significant intrusions on the citizenry’s privacy.  It is elementary in deploying those means and powers that police comply with the legislative conditions for their exceptional operation.  That yet again it did not occur here, whether through ignorance or the paying of lip service to the legislative requirements, bespeaks a need to ensure such unlawfulness does not receive curial approval.
  3. [34]
    The undesirable effect of this Court being seen as tolerating the circumstances prompting this unlawful search materially outweighs the undoubted public interest in the conviction and punishment of the applicant.  It follows in the balancing exercise that in my conclusion the evidence the subject of the application should be excluded.
  4. [35]
    My orders are:

1. Application granted.

2. The evidence of what was found during the roadside search of the vehicle driven by the applicant on 4 June 2022 is excluded from evidence on his trial on the indictment charging him with possession of methylamphetamine with circumstance of aggravation on that date at that place.

Close

Editorial Notes

  • Published Case Name:

    R v Casemore

  • Shortened Case Name:

    R v Casemore

  • MNC:

    [2023] QSCPR 21

  • Court:

    QSCPR

  • Judge(s):

    Henry J

  • Date:

    06 Dec 2023

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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