R v Lucas[2023] QSCPR 22

SUPREME COURT OF QUEENSLAND

Introduction

1. [1]
   Matthew Graham Lucas is charged with drug trafficking. The evidence supporting that charge derives in large measure from a mobile phone seized by the police during a search of a motor vehicle driven by the Applicant on 26 October 2020.
2. [2]
   The Applicant seeks to have the evidence obtained from the mobile phone excluded from evidence at any trial.

The Evidence

3. [3]
   On 26 October 2020, Senior Constable Grant Stallard and Senior Constable Timothy Sprott were conducting patrols in an unmarked police car. At 9.20pm they intercepted the applicant driving a vehicle belonging to his parents. The evidence of the subsequent actions by the officers and their search of the vehicle and the applicant comes from statements placed before me. There was no cross examination of either officer nor any challenge to the evidence.
4. [4]
   In his statement of 26 May 2021 Officer Sprott said:

6. “I approached the driver and activated my body worn camera. The driver then identified himself as Matthew LUCAS. LUCAS stated the vehicle belonged to his parents. I conducted checks on his licence which came back as an expired licence. LUCAS told me he was driving from Railway Estate to Bushland Beach to see a friend Dale FINNEGAN.
7. Whilst speaking to LUCAS I observed that he appeared to be dazed and was delayed in responding to my questions. I also observed LUCAS to put an amount of cash into his wallet as I approached the window. I found this to be odd behaviour and possibly an attempt to hide money from my view. LUCAS stated that the cash had just fallen out of his wallet.
8. I was aware that LUCAS was subject to multiple Queensland Police Intelligence submissions implicating him the possession and supply of dangerous drugs.
9. Due to my conversation and observations of LUCAS, I formed reasonable suspicion that LUCAS was in possession of dangerous drugs and under section 31 of the Police Powers and Responsibilities Act, I detained the vehicle and LUCAS for the purpose of a search.
10. LUCAS got out the vehicle and moved to the footpath where I introduced Senior Constable STALLARD as the senior officer present. I then produced my official Queensland Police identification badge to LUCAS as I was in plain clothes.
11. I explained the process of what being detained meant and what Senior Constable STALLARD and myself would be searching. LUCAS did not declare any items prior to the search.
12. I observed Senior Constable STALLARD search LUCAS and the vehicle.
13. I then cautioned LUCAS about his right to silence.
14. I had a conversation with Senior Constable STALLARD.”

5. [5]
   In his statement of 25 April 2021 Officer Stallard said:

6. “I observed Senior Constable SPROTT detain the defendant for a search in relation to dangerous drugs. I then introduced myself as the senior officer present providing the defendant with my name rank and station.
7. I was aware that the defendant was currently the holder of recent intelligence in relation to the supply of dangerous drugs. I am aware mobile phones are used in order to conduct these transactions.
8. Shortly after, I conducted a search of the vehicle and on the passenger side seat I located a Apple iPhone. I unlocked the phone and observed messages I believed to be in relation to the supply and purchase of dangerous drugs. I informed Senior Constable SPROTT of the context of the messages and handed the phone to Senior Constable SPROTT to examine. At approximately 9.54pm we completed the search.”

6. [6]
   During his search of the vehicle, Senior Constable Stallard found a mobile phone on the front passenger seat. By holding a torch up to the phone, Constable Stallard guessed the PIN and unlocked the phone. Constable Stallard then began to peruse the content of the phone and discovered text messages about what he believed was the supply of dangerous drugs.
7. [7]
   In submissions before me Mr Marley for the applicant accepted that Officer Sprott held a reasonable suspicion that unlawful dangerous drugs were in the vehicle with the consequence that he had the power under s 31 of the Police Powers and Responsibilities Act 2000 (Qld) (“PPRA”) to search the vehicle for the presence of unlawful dangerous drugs but, it was submitted that that did not authorise Officer Stallard to conduct a search for a phone or a search of the phone.

The PPRA

8. [8]
   Sections 31 and 32 of the PPRA relevantly provide:

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.

…

5. The police officer may seize all or part of a thing –

1. that may provide evidence of the commission of an offence; or

…

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).

32Prescribed circumstances for searching vehicle without warrant

1. It is a prescribed circumstance for searching a vehicle without a warrant that there is something in the vehicle that –

…;

3. may be an unlawful dangerous drug; or

….

9. [9]
   In R v Wassmuth; Ex parte Attorney-General (Qld)^[1] the Court of Appeal reviewed and considered the operation of sections 31 and 32 of the PPRA and the context of the Act^[2]. After considering the power proposed by s 31 within the context of the Act as a whole and also reviewing the authorities concerned with the correct approach to statutory construction and the statutory context^[3] Morrison JA^[4] said:

1. “[54]
   Within that context one can turn to the construction of s 31. There are a number of features that must be noted.

55. [55]
    First, the headings of Part 2 and Division 2, 3 and 4 all state in terms that the subject matter of those parts of the PPRA are searches “without warrant”.
56. [56]
    Secondly, the heading of s 31 states that the subject matter of that provision is searching vehicles “without warrant”.
57. [57]
    Thirdly, the opening words of s 31(1) provide the condition upon which the power exists. It is that the police officer “reasonably suspects any of the prescribed circumstances for searching a vehicle without a warrant exist”. Plainly that suspicion must exist before the power in s 31(1) can be exercised.
58. [58]
    The “prescribed circumstances for searching a vehicle without a warrant” are those in s 32. In broad terms, they are that there is something in the vehicle that is unlawful, dangerous, stolen or tainted, unlawfully obtained, evidence of an offence, or used or to be used in an offence. Section 32(1)(c) provides a particular circumstance, namely where the police suspect that “there is something in the vehicle that may be an unlawful dangerous drug”.
59. [59]
    Fourthly, the power given under s 31(1)(a) is to “stop a vehicle”. In my view, it means that the police have power to stop a moving vehicle. That is plainly different from the power in s 31(1)(b) to “detain a vehicle”, which is the power to prevent a stopped vehicle from being moved.
60. [60]
    Fifthly, the power under s 31(1)(b) is also to “detain … the occupants of the vehicle”. When construed together with the power to “stop” a vehicle, that means that the police can make a vehicle stop moving and detain those who are in the moving vehicle.
61. [61]
    Sixthly, s 31(1)(c) gives power to search the vehicle “for anything relevant to the circumstances for which the vehicle and its occupants are detained”. The “circumstances for which the vehicle and its occupants are detained” are those of the “prescribed circumstances” under s 32 that are relevant to the particular case. In other words, the police officer’s suspected “prescribed circumstances” that led to the power being exercised are the “circumstances for which the vehicle and its occupants are detained”.
62. [62]
    Seventhly, the character of the power under s 31(1) can be seen from the power under s 31(2), namely to “stop, detain and search a vehicle … if the police officer reasonably suspects … the vehicle is being used unlawfully …”. Under s 31(2) the power is not conditioned upon a suspicion as to “prescribed circumstances” in s 32(1). Instead it is conditioned upon reasonable suspicion that the vehicle is being “used unlawfully”. This is self-evidently a different concept from those delineated in the “prescribed circumstances”, which are concerned with something, i.e. an object, in the vehicle. Instead, this power relates to the use of the vehicle regardless of what might be in it.
63. [63]
    Eighthly, the power under s 31(1) can be contrasted with the power in s 31(2). The exercise of power under s 31(2) is conditioned upon a suspicion of “prescribed circumstances” under s 32(2). In that case the prescribed circumstances can be paraphrased as that “the driver has committed or is committing [a particular] offence”, or that the vehicle “is being used by, or is in the possession of, a person who has consorted with offenders”. It can be seen that the focus is upon the person using the vehicle.
64. [64]
    Ninthly, the police are given further powers by ss 31(4), (5) and (6) that augment the power in s 31(1). Under s 31(4) if it is impractical to search the stopped vehicle where it was stopped, it may be taken “to a place with appropriate facilities for searching the vehicle” and police may “search the vehicle at that same place”. Under 31(5) police may seize things that provide evidence of the commission of an offence, or that the person intended to use to harm someone. Under s 31(6) the power to search the vehicle includes power to enter it, and stay in it, as often as necessary to remove a seized thing.
65. [65]
    Thus, the PPRA gives general power to police to enter places (including a vehicle) and search persons, usually conditioned by obtaining a warrant first. However, the legislature has identified two circumstances where police may stop, detain and search a vehicle without a warrant. The two circumstances are quite different from one another.
66. [66]
    The first is s 31(1) which depends upon the police officer forming the reasonable suspicion that there are “prescribed circumstances”, namely that there is something in the vehicle that fits the definitions in s 32, which in turn means something that is unlawful, dangerous, stolen or tainted, unlawfully obtained, evidence of an offence, or used or to be used in an offence. No more senior authorisation is required.
67. [67]
    The second is s 53BG, which deals with “out of control events”. These are events where 12 or more people are present and three or more of them engage in “out of control behaviour” as defined in s 53BC. In a general sense that is antisocial behaviour that includes: (i) unlawfully entering or remaining in a place or threatening to enter a place; (ii) disorderly, threatening or violent behaviour; (iii) unlawfully assaulting someone or threatening to do so; (iv) wilful exposure of genitals or doing an indecent act; (v) doing burnouts; (vi) throwing, releasing or placing things in a way that endangers others; (vii) obstructing people or vehicles; (viii) intoxication in a public place; (ix) supply or trafficking in dangerous drugs, and other offences under the Drugs Misuse Act 1986 (Qld, Part 2; (x) unlawful supply of liquor, and other offences under the Liquor Act 1992 (Qld), Part 6.
68. [68]
    Therefore, it can be seen that s 53BG is aimed at conduct, rather than the subject matter of s 32, namely the particular quality of something in a vehicle.
69. [69]
    It therefore appears that the PPRA has carefully identified two sets of circumstances sufficiently serious to call for the police to be given the power to stop, detain and search a vehicle may be used without a warrant. And, of the two provisions that give such power to it is only s 31(1) which makes express provision enabling the police officer to act autonomously without more senior authorisation.
70. [70]
    Further, the terms of s 32 which defines the “prescribed circumstances” reveals the legislature’s care in defining the things, and the dangerous nature of those things, attracting the power to act without a warrant in such a case. One need only mention unlawful dangerous drugs, weapons, firearms, explosives and the tools of criminal activity to understand the particular delineation taken for the use of power under s 31.”

(footnotes omitted)

The Arguments

10. [10]
    In support of the application to exclude the evidence from the phone, Mr Marley submitted that the actions of Officer Stallard in seizing and then searching the phone exceeded the purpose for which the officers were conducting the search under s 31, which was in relation to the presence of dangerous drugs based on the reasonable suspicion of Officer Sprott. He submitted therefore that while this search of the motor vehicle for the presence of dangerous drugs was lawful, the search and seizure of the phone by Officer Stallard in the circumstances was not authorised by the PPRA. In making this submission he emphasised s 31(1)(c) and in the authorisation to search a vehicle and anything in it “for anything relevant to the circumstances for which the vehicle and its occupants are detained”.
11. [11]
    Further, Mr Marley submitted if the seizure of the phone was lawful the evidence should be excluded because of the failure of Officer Stallard to comply with the mandatory requirements of s 695 for an order under s 696 to keep the phone in his possession.

Discussion

12. [12]
    The terms of s 31(1)(c) relied upon by Mr Marley warrant close consideration. They authorised a search of the vehicle “and anything in it” for “anything relevant to the circumstances for which the vehicle and its occupants” were detained. It is not contentious that the phone was in the car. The circumstance for which the vehicle and occupants were detained in this case was that stipulated by s 31(1)(c) that there may be an unlawful drug present in the vehicle. But s 31(1)(c) does not limit the search to only for an unlawful drug. It authorises a search for “anything relevant to the circumstances for which the vehicle and the occupants are detained”. The words or term “anything relevant to” are of wide import. For example evidence leading to the proof of possession would be “relevant to” the suspected presence of drugs. So might evidence supporting proof of the supply of drugs or for that matter the trafficking in dangerous drugs be within the ambit of “anything relevant to” the presence of dangerous drugs.
13. [13]
    The view of sections 31 and 32 that I take in the circumstances that apply here is that they authorised Officer Sprott to detain the vehicle and the occupants of the vehicle and search the vehicle and anything in it for anything relevant to the circumstance of the reasonable suspicion or the presence of dangerous drugs. Section 31(5) in the circumstances authorised the police officers to seize the phone that might provide evidence of the commission of an offence and authorised the search of the vehicle including the power to enter the vehicle, stay in it and re-enter as often as necessary to remove, in this case the phone.
14. [14]
    In the circumstances outlined above s 196(1) and s 196(2) of the PPRA authorised the seizure of the phone in the circumstances where Officer Stallard, in my view, lawfully entered the vehicle (a place). Once the power to lawfully seize the phone is identified that power includes a power to examine the contents of the phone under s 618 and s 619 of the PPRA.
15. [15]
    However in the circumstances of the search of the car and seizure of the phone s 695 of the PPRA required that within 30 days of the seizure a police officer must apply to a Justice of the Peace or a Magistrate for an Order under s 696 unless a proceeding has been started. This was not done. The circumstances under which this failure occurred is explained by Officer Sprott in the statement made by him on 20 April 2022. Relevantly:

55. “6.
    I am aware that under Section 695(2)(a) of the Police Powers and Responsibilities Act 2000 that: …

7. I did not seek an order under Section 696 within 30 days of seizing the device as required as my intention was to commence proceedings within this timeframe. I was unable to achieve this due to the large amount of data retrieved from the device which I was required to interpret and collate. This became a protracted exercise due to rostering and operational requirements of myself as part of my normal duties.

8. I commenced a PPRA search warrant application on the 2^nd of December 2020, 35 days after seizing the device This warrant was sworn out on the 14^th of December 2020 and executed on the 18^th of December 2020, where proceedings were commenced.”

16. [16]
    In the circumstances where failure to comply with a mandatory requirement of the PPRA a discretion arises as to whether I should exclude the evidence or whether I should in the circumstances not exclude the evidence.
17. [17]
    One authority in which the discretionary conciliations in this context were identified and discussed is the judgment of Applegarth J in R v Versac^[5]where his Honour said:

The discretion to exclude unlawfully obtained evidence

55. “[4]
    The discretion discussed in authorities such as Bunning v Cross requires competing public interests to be weighted. 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.”

55. [5]
    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.

55. [6]
    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.

55. [7]
    Although fairness is relevant to the public policy discretion, it is not its focus. Instead, considerations of public policy are engaged, and fall to be applied in the particular circumstances of the case. The weight given to competing factors depends on those circumstances. For example, the particular circumstances may deprive the principle of deterrence of much weight. The unlawful conduct may have been the subject of disciplinary procedures, counselling or other remedies which sanction wrongful conduct or deter its repetition. If this is not the case, exclusion of the evidence may be appropriate to both uphold the judicial integrity principle and to deter such conduct in the future. If such unlawful conduct is tolerated by those in higher authority, then the case for exclusion will be stronger.

55. [8]
    The essential nature of the balancing exercise was stated by Barwick CJ in The Queen v Ireland:

“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.”

(Footnotes omitted)

18. [18]
    Turning first to the consideration of the circumstances arising by the failure to comply with s 695 and s 696. It will be recalled that Officer Sprott was not cross examined or challenged upon his evidence. My understanding of the effect of his evidence was that the failure to seek an order was in essence an oversight brought about by the pressure of work, it being his intention to commence proceedings within the 30 day timeframe. The circumstances do not bespeak an occasion where any conduct or misconduct was encouraged or tolerated by those in higher authority. I accept that this arose by reason of oversight brought about by the pressure of work. The evidence on its face appears to be cogent and important to the proposed prosecution case. The offending charged is serious. In the circumstances where the officer’s oversight was not deliberate nor recklessly in disregard of the law I exercise my discretion to admit the evidence and dismiss the application. With respect to the circumstances applying at the time of the search of the vehicle if, notwithstanding my view, it were held that Officer Stallard’s actions were unlawful I would still exercise my discretion not to exclude the evidence. There was no suggestion that the actions of either of the police officers involved were deliberate or in reckless disregard of the law. The evidence is in my view important and cogent and the offending serious. In that hypothesised case I would exercise my discretion to admit the evidence.
19. [19]
    In my view therefore the application should be dismissed.

Order

20. [20]
    The application is dismissed.