R v Wakefield[2023] QSCPR 5

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant seeks to exclude evidence in reliance upon the discretion identified and explained in R v Ireland^[1] and Bunning v Cross.^[2] 

The charges

2. [2]
   The applicant is accused on indictment charging him:

Count 1 that between the eighteenth day of December 2019 and the fifteenth day of January 2020 at West End and elsewhere in the State of Queensland, WAYNE JASON WAKEFIELD carried on the business of unlawfully trafficking in dangerous drugs.^[3]

Count 2 that on the eighth day of January 2020 at West End in the State of Queensland, WAYNE JASON WAKEFIELD unlawfully had possession of the dangerous drug cocaine.

And the quantity of the dangerous drug exceeded 2.0 grams.^[4]

Count 3 that on the eighth day of January 2020 at West End in the State of Queensland, WAYNE JASON WAKEFIELD unlawfully had possession of the dangerous drug 3,4-methylenedioxymethamphetamine.

And the quantity of the dangerous drug exceeded 2.0 grams.^[5]

Count 4 that on the eighth day of January 2020 at West End in the State of Queensland, WAYNE JASON WAKEFIELD unlawfully had possession of the dangerous drug methylamphetamine.

And the quantity of the dangerous drug exceeded 2.0 grams.^[6]

Count 5 that on the eighth day of January 2020 at West End in the State of Queensland, WAYNE JASON WAKEFIELD unlawfully had possession of the dangerous drug lysergide.^[7]

Count 6 that on the eighth day of January 2020 at West End in the State of Queensland, WAYNE JASON WAKEFIELD unlawfully had in his possession two sets of digital scales, two mobile phones, a notebook and a capsule filler that he used in connection with the commission of the crime of trafficking in dangerous drugs.^[8]

Count 7 that on the nineteenth day of May 2020 at Fortitude Valley in the State of Queensland, WAYNE JASON WAKEFIELD unlawfully had possession of the dangerous drug 3,4-methylenedioxymethamphetamine.

And the quantity of the dangerous drug exceeded 2.0 grams.^[9]

Count 8 that on the nineteenth day of May 2020 at Fortitude Valley in the State of Queensland, WAYNE JASON WAKEFIELD unlawfully had possession of the dangerous drug cocaine.^[10]

Count 9 that on the nineteenth day of May 2020 at Fortitude Valley in the State of Queensland, WAYNE JASON WAKEFIELD unlawfully had possession of the dangerous drug methylamphetamine.^[11]

Count 10 that on the nineteenth day of May 2020 at Fortitude Valley in the State of Queensland, WAYNE JASON WAKEFIELD unlawfully possessed a relevant substance 4-hydroxybutanoic acid lactone.^[12]

3. [3]
   The applicant also faces various summary charges.

Background

4. [4]
   On 8 January 2020, Sergeant Adornato and Constable Acworth were on patrol in West End.  When they were parked by the side of the road the applicant drove past in a car.  Constable Acworth noticed that the applicant was using his mobile telephone.  That was a traffic offence.
5. [5]
   The police officers drove up behind the applicant and pulled him over.  The police car was by the side of the road and behind the applicant’s car.  Constable Acworth approached the applicant who remained seated in the driver’s seat of the car.  She spoke to him while Sergeant Adornato walked along the passenger side of the applicant’s car generally making observations.
6. [6]
   Constable Acworth conducted a roadside breath test upon the applicant and walked back to the police car in order to complete the infringement notice for the traffic offence.  Sergeant Adornato then approached the applicant who was still seated in the car.  After speaking with the applicant, Sergeant Adornato detained him for the purposes of a search of the car.  He purported to act under s 31 of the Police Powers and Responsibilities Act 2000 (PPRA) to search the car without a warrant. 
7. [7]
   Section 31 of the PPRA provides relevantly as follows:

“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

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. …”

8. [8]
   Section 30 of the PPRA defines “prescribed circumstances”.  It provides, relevantly:

“30 Prescribed circumstances for searching persons without warrant

1. The prescribed circumstances for searching a person without a warrant are as follows—

1. the person has something that may be—

1. …

2. an unlawful dangerous drug; or …

5. tainted property; or …

3. the person has something that may have been used, is being used, is intended to be used, or is primarily designed for use, as an implement of housebreaking, for unlawfully using or stealing a vehicle, or for the administration of a dangerous drug; …”

9. [9]
   A search was conducted of the applicant’s car.  This revealed:

1. 163.645 grams of cocaine within 256.321 grams of substance.  That constitutes count 2 on the indictment.
2. 20.706 grams of 3,4-methylenedioxymethamphetamine, commonly known as “MDMA”, contained in 29.163 grams of substance.  That constitutes count 3 on the indictment.
3. 2.133 grams of methylamphetamine in 2.844 grams of substance.  That constitutes count 4 on the indictment.
4. A number of strips of lysergide, commonly known as “LSD”.  That constitutes count 5 on the indictment.
5. Envelopes containing cash totalling $20,590.  That constituted a summary charge, being in possession of property suspected of being the proceeds of trafficking in dangerous drugs.^[13]
6. Various things, namely a pipe, two sets of scales, a notebook, a capsule filler and two telephones.  Possession of some of these things constitutes a summary charge, being in possession of things used in connection with the commission of an offence against the Drugs Misuse Act 1986,^[14] and possession of some supports count 6 on the indictment.^[15]

10. [10]
    The mobile telephones seized in the search of the car were examined.
11. [11]
    Police then conducted a search of the applicant’s residential address on 8 January 2020.  That search revealed an envelope upon which there was writing suggesting it was a record of drug transactions where the applicant had given credit to his customers.  Also located was a vacuum sealer machine. 
12. [12]
    From the information on the telephones and from the evidence from the search of the car and residence, police allege that the applicant trafficked in dangerous drugs from 19 December 2019 until his interception on 8 January 2020 and then returned to trafficking for about another week, extending the trafficking period to 14 January 2020.  He is described as “a wholesale and high level street level drug trafficker” who was trafficking in cocaine and MDMA.  He sold in quantities which attracted significant prices.  Messages on the telephone showed that he knew that he was selling to persons who were onselling.  Police alleged that the applicant had at least 23 customers who participated in supplying dangerous drugs on at least 16 occasions.  He utilised other people to effect some sales.  He threatened violence against debtors and took steps to conceal his activities.  This is the basis of count 1 on the indictment.^[16]
13. [13]
    The Crown concedes that the evidence of the trafficking and all other evidence gained from the search of the applicant’s telephones and residence was derived directly or indirectly from the search of the car on 8 January 2020. 
14. [14]
    Some months later on 19 May 2020, police executed a search warrant at the applicant’s address.  MDMA, cocaine, methylamphetamine and 4‑hydroxybutanoic acid lactone, commonly known as “GBL” were found.  Those discoveries constitute counts 7 to 10 on the indictment.  Some other drug related things were found and that forms the basis of further summary charges.
15. [15]
    It is not alleged that the evidence supporting counts 7, 8, 9 and 10 or the related summary offences was derived from the search conducted on 8 January 2020 at West End.

Relevant legal principles

16. [16]
    Section 31 of the PPRA is contained within Part 2 of Chapter 2.  Chapter 2 is entitled “General enforcement powers” and Part 2 is entitled “Searching persons, vehicles and places without warrant”.
17. [17]
    The starting point is that no police officer has the right to interfere with a citizen’s rights by either searching their person or property.  Authority to search can be obtained through warrant issued by a Justice of the Peace^[17] under Chapter 7.  In the circumstances identified in Chapter 2 Part 2, authority for the search comes from the PPRA, not a warrant.^[18]
18. [18]
    After Sergeant Adornato detained the applicant, he conducted a “pat down search”.  During this exercise the applicant disclosed that he was carrying $1,000 in the left pocket of his pants.  That was then located by police.
19. [19]
    Section 31 does not authorise a search of a person without warrant.  Section 29 does.  It 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.”

20. [20]
    The prescribed circumstances for the purposes of s 29 are the same as those for s 31; those as defined in s 30.^[19]
21. [21]
    Sergeant Adornato alleged that he reasonably suspected the presence of drugs in the car which is a “prescribed circumstance” by force of s 30(1)(a)(ii) of the PPRA.  That, he says, justified his search of the car.  The search of the applicant, presumably, was justified by the same “prescribed circumstance”.  There was no separate argument before me as to the lawfulness of the pat down search.  However, if Sergeant Adornato did not have authority to search the car, then he did not have authority to search the applicant’s person.  There are no discretionary features unique to the search of the applicant and no discretionary features relevant to the search of the car which would not also apply to the search of the applicant.  Therefore, if evidence from the search of the car is excluded, then so should be the evidence of locating the $1,000 on the applicant’s person.  Conversely, if the challenge to the admission of the evidence obtained from the search of the car fails, then evidence of the search of the applicant’s person must be admitted.
22. [22]
    The right to search is dependent upon a reasonable suspicion of the existence of the prescribed circumstance (which I will call the jurisdictional fact).  The existence of the jurisdictional fact then authorises the exercise of power under s 31(1)(a), (b) and (c) of the PPRA.  Here, it is clear that the stopping of the vehicle^[20] was not an act done upon existence of the jurisdictional fact and in exercise of the power under s 31(1) of the PPRA.  The vehicle was stopped because Constable Acworth saw the applicant using his mobile telephone while driving.  Probably stopping the car was authorised by s 60(1) of the PPRA^[21] but that needn’t be considered.^[22]  Mr Kimmins of counsel who appeared for the applicant conceded that the police lawfully stopped the vehicle.
23. [23]
    Section 31 of the PPRA empowers a police officer to search for evidence.  The search for evidence is a step taken in an investigation.  The officer is authorised to exercise powers pursuant to that “suspicion” so as to ascertain whether the relevant thing (here, drugs) is in the vehicle or upon the suspect’s person.^[23] 
24. [24]
    There are two elements to a “reasonable suspicion”.  One element is subjective:  the person exercising the power must hold the suspicion.  The second is objective:  there must be reasonable grounds upon which the person exercising the power holds the suspicion.
25. [25]
    Here, it is conceded that Sergeant Adornato held the requisite suspicion.  The question is whether he had reasonable grounds for holding that suspicion.
26. [26]
    The term “reasonably suspects” is defined in Schedule 6 of the PPRA as:

“reasonably suspects means suspects on grounds that are reasonable in the circumstances.”

27. [27]
    As said by Kitto J in Queensland Bacon Pty Ltd v Rees:

“A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust amounting to ‘a slight opinion, but without sufficient evidence’, as Chamber’s Dictionary expresses it.”^[24]

28. [28]
    Lord Devlin, sitting in the Privy Council in Hussein v Chong Fook Kam,^[25] described “suspicion” as:

“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove’. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end.”^[26]

The reasonableness of the suspicion

29. [29]
    Given the definition of “reasonably suspects” in the PPRA, the starting point is to identify the grounds upon which the suspicion was actually formed. 
30. [30]
    Sergeant Adornato provided two statements and was cross-examined.  He was wearing a body camera when he spoke to the applicant by the side of the road.  He completed a brief to police prosecutors once the applicant had been charged.
31. [31]
    On all those occasions he identified grounds upon which he held the prescribed suspicion.  It is necessary to look at each of those sources.

What was said by the side of the road

32. [32]
    This exchange occurred after Sergeant Adornato announced that the applicant was detained for search:

“WAKEFIELD: Is there a reason why I’ve been--

SGT ADORNATO: Oh, there, there’s a few reasons--

WAKEFIELD: Yeah.

SGT ADORNATO: Um, I’ll articulate it after the search for ya--

WAKEFIELD: Okay.

SGT ADORNATO: If you’re happy with that?

WAKEFIELD: Alright, yeah.

SGT ADORNATO: Okay? Um, just pop your hands on the, on the boot of the car. Ah, you’ve been cooperating an’ everything like that, I don’t think that you’re villainous by any means but we’ve got a lot of drug activity in this area later--

WAKEFIELD: Oh--

SGT ADORNATO: Lately-

WAKEFIELD: I see, yeah.

SGT ADORNATO: Um, I don’t mind telling you right now, mate, you just, obviously, you’re drivin’ a, a vehicle that’s not yours an’ I know that you’ve got it from yer--

WAKEFIELD: Oh, right.

SGT ADORNATO: From the, from the mechanic but the things that arouse suspicion are things like, you know, all the personal items that are in the car. Are they your items--

WAKEFIELD: [INDISTINCT]--

SGT ADORNATO: Or they belong to somebody else?

WAKEFIELD: That’s my dry cleaning.

SGT ADORNATO: Oh, okay, cool stuff.” (emphasis added)

33. [33]
    So, the stated reasons for the suspicion are:

1. there is a lot of drug related activity in the area;
2. the vehicle driven by the applicant was not his;
3. the presence of the personal items in the car.

34. [34]
    The “personal items” were not identified during the conversation between Sergeant Adornato and the applicant.  In his first statement, Sergeant Adornato identifies various items that he said he saw:

1. envelopes;
2. “crisp long-sleeved shirts”;
3. two mobile telephones.

35. [35]
    Later during the conversation by the side of the road, this exchange occurred:

“WAKEFIELD: There you go, sir. Yeah, mate, my, my car’s a station wagon [INDISTINCT], because of the age of the car, was it?

SGT ADORNATO: No, no--

WAKEFIELD: No.

SGT ADORNATO: The reason we pulled you over is ‘cause you were on your phone .

WAKEFIELD: Oh, okay.

SGT ADORNATO: Ah, yeah, so that’s what drew our attention to ya--

WAKEFIELD: Yeah.

SGT ADORNATO: We didn’t know who you were, obviously.

WAKEFIELD: No, good.

SGT ADORNATO: No way of knowin’.”

36. [36]
    This part of the conversation concerns the reason for the intercept not the grounds for the search.  It was not suggested that the fact that the applicant was making a telephone call while driving was a ground to suspect that there would be drugs in the car.

The police brief

37. [37]
    Constable Acworth assembled the police brief, but Sergeant Adornato composed the “facts of the charge” (the factual allegations).  In the factual allegations, Sergeant Adornato outlined his observations.  He said:

“Whilst speaking with the defendant, Police observed a mobile phone on his lap and a further mobile phone tucked under his leg. When asked, the defendant claimed he had a phone for work and a phone for his private use. When questioned about his employment, the defendant claimed to be a truck driver.

The defendant claimed to be visiting a friend named ‘Morgan’ in the West End area. When asked, the defendant claimed he did not know Morgan’s surname as he had only met them recently. Police observed three envelopes on the passenger seat of the vehicle.

The defendant claimed the Mazda 626 he was driving belonged to a mechanic. The defendant stated he recently received the vehicle as a loan car after dropping in his Holden Calais sedan for mechanical works.

Police observed through the rear windows of the vehicle, several clothing items hung on the rear left handle of the cabin. Further, Police observed a blue cooler bag in the rear right seat of the vehicle.

During conversations, Police observed the defendant to have constricted pupils consistent to that of a drug user. The defendant was detained for a search resulting in the following items being located. …” (emphasis added)

38. [38]
    The stated reasons for the suspicion are, at least by the time of the police brief:

1. The applicant gave an account of his presence in West End visiting a friend whose surname he did not know.
2. There were personal items in the car identified as:

1. two telephones;

2. envelopes on the passenger seat;

3. clothing items;

4. a blue cooler bag.

3. The applicant had “constricted pupils consistent to that of a drug user”.
4. The applicant’s vehicle was not his.

39. [39]
    There are significant differences between what Sergeant Adornato said to the applicant by the side of the road and what appears in the factual allegations.  They are:

1. It was said in the factual allegations but not said to the applicant by the side of the road that his presence in West End visiting a friend whose surname he did not know had some significance.
2. There was no mention in the conversation by the side of the road of Sergeant Adornato seeing a blue cooler bag before the search let alone placing any significance on it, yet that is noted in the factual allegations.
3. There is no mention in the factual allegations of drug offending being prevalent in the West End area.  This was a factor which Sergeant Adornato mentioned in his conversation with the applicant by the side of the road.
4. In the factual allegations, Sergeant Adornato said he observed physical indicia (constricted pupils) which indicated that the applicant may have been a drug user.  That was not mentioned in the conversation by the side of the road.

40. [40]
    An obvious problem with the allegation that Sergeant Adornato noticed that the applicant had “constricted pupils consistent to that of a drug user” was that Constable Acworth made no such observation, despite the fact that she was speaking with the applicant for some time by the side of the car with the driver’s window down.

Sergeant Adornato’s first statement

41. [41]
    This was made on 19 February 2020, about five weeks after the interception of the applicant in West End. 
42. [42]
    Sergeant Adornato said he made the following observations before detaining the applicant:

1. The car was not the applicant’s.
2. The applicant was in West End visiting his friend, Morgan, whose surname he did not know.
3. The applicant was in possession of two mobile telephones, one of which was under his leg.
4. The applicant was “nervous”.
5. The applicant was “sweating profusely”.
6. The applicant had constricted pupils.
7. In the car were crisp, long-sleeved collared shirts hung in the rear of the vehicle.

43. [43]
    For the first time, Sergeant Adornato has described the applicant as “nervous and sweating profusely”.  Neither of those observations are mentioned by Sergeant Adornato to the applicant by the side of the road and neither are mentioned in the factual allegations in the police brief.  This is so even though Sergeant Adornato had by then turned his mind to personal indicia of drug use and had mentioned in the factual allegations that the applicant had constricted pupils.
44. [44]
    In his first statement, Sergeant Adornato does not mention seeing the blue cooler bag before detaining the applicant and searching the car.
45. [45]
    There is no mention in the first statement of Sergeant Adornato taking into account the prevalence of illicit drug activity in the West End area. 
46. [46]
    The story of the applicant showing indicia of drug use can be seen to be growing.  If Sergeant Adornato’s statement is true, then not only has Constable Acworth missed that the applicant’s pupils were constricted, but she also has failed to notice that he was nervous and sweating profusely.  This is despite the fact that she was speaking to him for some time and administered a roadside alcohol test. 
47. [47]
    If Sergeant Adornato did observe indicia of drug use, why not mention it to the applicant by the side of the road?  Instead, he chose to mention much less direct evidence such as the fact that the vehicle being driven by the applicant was not his.

Sergeant Adornato’s second statement

48. [48]
    Relevantly, Sergeant Adornato says in his second statement, dated 6 September 2022:

“3. My previous statement outlines my observations of WAKEFIELD at the time Constable Mekilah ACWORTH and I intercepted him on 8 January 2020 on Boundary Street in West End.

4. Upon the commencement of my interactions with WAKEFIELD, I conducted checks on a Queensland Police issued iPad. This device provides access to the Queensland Police Records and Information Management Exchange database.

5. I reviewed a crime occurrence pertaining to WAKEFIELD. This crime occurrence was numbered QP1901302616 and was furnished on 6 July 2019. The report listed the offender as ‘WAYNE WAKEFIELD’ with the officer report stating, ‘Located in the male toilet with dangerous drugs and utensil.’ The report listed the evidence located as, ‘Clip seal bags containing MDMA.’ The crime was listed to have occurred at ‘Mr Mista’ which is a licenced premises situated at ‘757Ann St, Fortitude Valley.’

6. In addition to my observations of WAKEFIELD as outlined in my previous statement, after reading the before-described report I formed the suspicion WAKEFIELD was in possession of dangerous drugs at the time I intercepted him. As such, I made the decision to detain WAKEFIELD, and to conduct a search of his clothing and vehicle.

7. I did not provide the before-listed information in my original statement as I was of the belief the information may have been prejudicial against WAKEFIELD. On 6 September 2022, I received a phone call from a DPP senior cross prosecutor (during which time, I explained the above-listed considerations in detaining WAKEFIELD). Subsequent to that conversation, I have provided this statement.”

49. [49]
    Sergeant Adornato’s second statement is the first time he mentions that he had access to the applicant’s criminal history before making a decision to detain him.

Sergeant Adornato’s evidence before me

50. [50]
    In evidence-in-chief, Sergeant Adornato said that while Constable Acworth was speaking with the applicant, he was making observations.  He said he saw some “crisp collared shirts” and on the passenger seat of the vehicle he saw a couple of hats and a couple of envelopes.^[27]  Of the envelopes, he was asked this:

“Front passenger seat. All right. Now, was there anything particular about the envelopes that attracted your attention?---Not particularly. I saw that they were there. I saw that they were under other items, those being hats. But, yeah, there was nothing that really stood out to me specifically in relation to those envelopes at the time, but it is something that I noticed when I was walking around the vehicle.”^[28] (emphasis added)

51. [51]
    Sergeant Adornato gave evidence that the applicant told him that the car was not his but belonged to a repair shop in Kessels Road, Macgregor.^[29]  He then said that he accessed Constable Acworth’s QLiTE^[30] device before then asking him why he was in West End.  He said that he was going to visit a friend who he identified as Morgan.^[31]
52. [52]
    Then this exchange occurred:

“The defendant’s demeanour, could you tell us something about that? --- I could see that he was - I believe that his breathing was a little bit unsteady, and that led me to believe that he may be nervous. I noticed that he was sweating. I noticed that he had constricted pupils at the time that I was speaking with him. I was of the view that he was nervous about - after being intercepted by Constable Acworth and I.

Now, you mentioned he had constricted pupils. Are you also - well, it’s a matter - it’s on the body-worn camera. At one stage he was looking directly into the sun?---Yeah, that’s correct. It was 3.15 pm that day and given it was January, it’s the middle of summer and the sun was right behind my head when I was speaking to him. So, yeah, that could have obviously factored into him having constricted pupils at the time of the intercept.”^[32] (emphasis added)

53. [53]
    Sergeant Adornato was then shown a QLiTE report which he interpreted as showing that on 6 July 2019 the applicant was found at a nightclub in possession of MDMA.^[33]
54. [54]
    Sergeant Adornato was then asked about the evidence upon which he formed the suspicion justifying the search.  This exchange occurred:

“Now, Sergeant, you detained the defendant for a search of his car?--- That’s correct.

And you have told us some of the things - and to do that you formed a reasonable suspicion?--- I believed that it was a reasonable suspicion, yes.

A reasonable suspicion of what?--- That the - that Mr Wakefield was in possession of drugs.

All right. Let’s do a round-up and a summary. What were the factors that contributed to your reasonable suspicion that there were drugs in his - well, on him or in his car?---Okay. Initially I observed two envelopes on the front passenger seat of the car. I - - -

What was the significance - sorry, what was the significance of those?---In isolation, I think they were just two envelopes. But I know that envelopes are used sometimes to - to hold money. I obviously know that they’re used to hold cards and letters also.  But I just noticed that there were two envelopes in the passenger seat. What they contained, I’m not sure.

All right. What were the other factors now?---So following that I observed the conversation that my partner, Constable Acworth, was having with Mr Wakefield. It was at that time that I noted that he was sweating. He appeared nervous, and by that I mean he had unsteady breathing, in my opinion, and I also noted that he had constricted pupils at that time. Following that, I utilised Constable Acworth’s QLiTE device to access Mr Wakefield’s previous police incidents and that specific drug-related occurrence report, and I interrogated that report, and within the general report of that report I came to an understanding that Mr Wakefield had previously been intercepted during July 2019 at Mr Mista in Fortitude Valley in possession of MDMA. Following that, I had my conversations with Mr Wakefield. He said that he was attending West End to visit a friend that he could only identify to me as Morgan. He wasn’t driving a vehicle that was registered to him at the time of the intercept. And there’s also - I mentioned to him that there’s drug activity in that area, and I’m happy to go into that further if you’d like me to. Would you like me to go further into the drug activity - - -

No, no, just the fact that there was drug activity. That’s sufficient, yes?---Okay. Thank you. And it was based on all of those facets together that I formed the suspicion that Mr Wakefield was in possession of drugs, and I believed that my suspicion was reasonable in those circumstances. But that’s - that’s my view, obviously.

There were - the reason he attracted your attention in the first place was because he was talking on his phone?---That’s right. That’s what drew our attention to - to that vehicle.

All right. How many phones did he have in total?---Of course. Yeah, he had two phones in his possession. I apologise. He had one phone tucked under his leg, which is obviously - to me, my interpretation of that was that Mr Wakefield was attempting to - to conceal it from my view. I guess to obviously expand on that, in the time that I’ve been stationed in the Tactical Crime Squad and targeting [indistinct] offenders I - in my experience, I’m of the understanding that people that partake in the use of and supply of dangerous drug will on occasion have additional phones for that purpose.

Right. Thank you. Yes, your Honour, that’s the evidence-in-chief.”^[34]  (emphasis added)

55. [55]
    From his evidence-in-chief, the following factors are identified as founding the suspicion:

1. The envelopes.  However, these appeared to be not particularly important or suspicious.^[35]
2. The applicant was sweating.
3. The applicant was nervous.
4. The applicant had unsteady breathing.
5. The applicant had constricted pupils.
6. He relied upon the QLiTE report of the applicant’s prior offending in July 2019.
7. There is drug activity in the area.
8. The applicant was in possession of two telephones, one of which was under his leg.

56. [56]
    Drug activity in the West End area has now re-emerged as a consideration.  It was mentioned by the side of the road but was not seen in the factual allegations or Sergeant Adornato’s two statements.
57. [57]
    The story of the applicant showing physical signs continues to grow.  By the time he gave oral evidence, Sergeant Adornato recalled that the applicant’s breathing was unsteady.  This is yet another feature of the applicant’s presentation to police which was apparently missed by Constable Acworth.
58. [58]
    Sergeant Adornato had to be prompted to mention the phones.

Consideration of Sergeant Adornato’s evidence

59. [59]
    A matter of contention arose as to when Sergeant Adornato became aware that the applicant had been found to be in possession of MDMA in a nightclub in 2019.  Sergeant Adornato says in his second statement and his evidence that he viewed the QPRIME information before he began speaking with the applicant.
60. [60]
    It was common ground that the QPRIME database is accessed through an iPad and that the iPad used during the investigations by the side of the road was the one issued to Constable Acworth.
61. [61]
    Constable Acworth said that she accessed the QPRIME while she was still in the police car before the applicant was intercepted.  She checked the registration number of the car.
62. [62]
    A QPRIME activity report was tendered before me as exhibit 8.  The information which appears to a police officer reading the iPad is not in the same format as appears in the activity report.  Sergeant Adornato made an attempt to interpret the activity report but candidly said that he had never previously seen one.
63. [63]
    The first entry, which is number 472, appears at 15:21:03 or three seconds past 3.21 pm.  The second and third entries (473 and 474) are at 15:21:09, six seconds after the first.  It is the third entry which refers to the applicant’s prior drug conviction.  There are then other entries at 15:21:27 (entry 475), 15:21:37 (entry 476) and 15:21:40 (entry 477).  There is nothing relevant which is apparent from the activity report in relation to those entries.
64. [64]
    There is then an entry at 15:23:20 (478) and 15:23:44 (479).  Again, there is nothing which seems relevant from those.
65. [65]
    Then, at 15:24:08, there is an entry which shows the applicant’s conviction for a drug offence which occurred on 2 September 2019.  That is entry 481.
66. [66]
    Entry 474 (15:21:09) also shows that conviction but gives more detail.  It identifies the place of the offending as the Mr Mista nightclub. 
67. [67]
    Entries 472-481 could not have been the result of access by Constable Acworth to QPRIME while she was in the police car before the intercept.  That is because at least entries 474 and 481 must have occurred after the applicant’s vehicle was intercepted and he had given police his name.
68. [68]
    In the footage from Sergeant Adornato’s body camera, it can be seen that Constable Acworth has a conversation with the applicant and then places her iPad on the roof of the applicant’s car.  By the time she does that, she knows the applicant’s name.  There is though no direct evidence from her that she typed anything into the QPRIME apart from the registration number of the applicant’s vehicle.
69. [69]
    Sergeant Adornato can then be seen picking up the iPad and using it in some way.  He said in evidence that he accessed the information which appears at item 474 of the report and appears again at item 481.^[36] 
70. [70]
    There is no time clock on the body camera footage, but Constable Acworth’s evidence that she first saw the applicant’s car at about 3.15 pm (15:15 hours) means that the access to the QPRIME which is items 474 and 481 has occurred approximately six and nine minutes respectively after police first saw the applicant’s vehicle.
71. [71]
    A further complication is that after Sergeant Adornato is seen accessing Constable Acworth’s iPad, he walks to the back of the police vehicle where Constable Acworth is standing and asks her the name of the applicant.  Mr Kimmins makes a point of this and says that Sergeant Adornato could not have had access to the information about the July 2019 incident when he apparently did not even know the applicant’s name.
72. [72]
    Because of the proximity in time between police first seeing the applicant’s car and the entries at items 474 and 481 of the activity report, the inevitable conclusion is that the information was accessed before the applicant was detained by Sergeant Adornato.  After 3.15 pm, Constable Acworth had walked to the applicant’s car and spoken to him.  Sergeant Adornato did not speak to the applicant until after Constable Acworth had completed her conversation.  It must have been that Constable Acworth, knowing the applicant’s name, accessed the database by reference to the applicant’s name.  Sergeant Adornato has then picked up the iPad and seen the information.
73. [73]
    It seems odd though that if Sergeant Adornato had access to the QLiTE showing the 2019 conviction, that he would have to ask Constable Acworth for the applicant’s name.  The applicant’s name certainly appears on entries 474 and 481 of the activity report.
74. [74]
    This was the subject of cross-examination by Mr Kimmins.  After playing that part of the body camera footage where Sergeant Adornato asked Constable Acworth the applicant’s name, this exchange occurred:

“MR KIMMINS: Did you hear that, Sergeant?---Yes. Yes, I did.

All right. Can I just ask you at that particular point you didn’t know what his name was, did you?---Whose name?

The accused?---Mr Wakefield?

Yes?---Yes, I did.

Where did you get it from?---The QLiTE device. Constable Acworth’s QLiTE device.

Yes, but you’ve got to have a name to put in there, don’t you?---I understand what you’re asking.

Yes?---So the footage shows Constable Acworth put her QLiTE device on the roof of Mr Wakefield’s car.

Correct?---Or the car he was driving.

Yes?---I have taken the QLiTE device. His information was already in it.

Pardon? Is already in it?---That’s correct.

Well, can we just ask you this. The vehicle is not registered to him, is it?---No, it’s not.

No. And anything that we’ve heard today, and I’ll ask you to think about it, were you present when Wayne Wakefield provided his full name and his date of birth to you or to Officer Acworth?---No, I was not.

No. And it seems that, as I suggested to you before, that she walks away with his licence, would have had his full name and his date of birth on it?---Yeah, leaving her QLiTE device behind.

Yes?---With the person’s record on the device.

Do you know how it got on to the record in that very short space of time?---I - I can - I can only - the only explanation I can provide for that is that Constable Acworth has searched his details on her QLiTE. I don’t recall putting his details in her QLiTE.

So do you have a memory of it or is it a matter of seeing it there or is it a matter of deduction that it must have been there?---I’d be relying - I’d be relying on what is evident on the body-worn footage for that.

Yes?---And I can’t - I can’t provide any - any explanation for what may or may not be on Constable Acworth’s body-worn footage.

Except that you say it must have been there, effectively, for you to have done the search?---On that QLiTE device; correct.

Yes?---Because I didn’t obtain his details, nor did I have his licence.

But when did Officer Acworth take possession of the QLiTE or when did you release possession of it back to her?---I don’t recall when I relinquished possession of the QLiTE. I believe the history - the QLiTE audit report will show when the search would have commenced, because obviously when the search commenced the QLiTE searches had stopped.

But all I’m really getting at is could I suggest to you that the passage that we just played you didn’t have his name or any of the information to have done a QLiTE search at that time?---The search had already been - I apologise, I might be misunderstanding the question.

All right. I’ll take it one step at a time?---No, the search had been done - if l may, the search had been done before I was having that conversation with the defendant that you just showed me.

Right?---So that - the QLiTE searches had already occurred.

All right. And could I just suggest this, that you told me before that effectively after Detective Acworth - Officer Acworth went back to the vehicle, you picked up her QLiTE and that was the first time that you had accessed it; is that right?---That’s correct.

Right. And you say that there was his full name and, what, date of birth and his history with the Queensland Police Service already on the QLiTE?---Yeah, already accessible on the QLiTE. So his - his name was on the QLiTE and I could do a search on that name.

But you never heard Officer Acworth ask him for his full name and his date of birth at any stage before she went to the rear of the car?---No, I can’t say that she didn’t ask for his name and date of birth because I wasn’t there for the full conversation.

You didn’t hear it?---I did not hear it. For clarity, I can say that the QLiTE device can do searches based on driver licence numbers.

I don’t - - -?---So it is - - -

I don’t doubt it?---Sorry?

I don’t doubt it?---Yep.

But she has the thing in her hand when she walks away leaving the QLiTE there?---The driver’s licence.

Yes?---Yes.

All right?---So, yeah; I’m afraid I don’t think that I can answer this question as to what she did or didn’t do. I can say that I accessed the QLiTE. His information was available to me on the QLiTE that was left on the vehicle.

All right. And can I just ask you this: have you ever identified that previously, before today, that all of the material was on the QLiTE before - - -?---That all the, sorry?

That all of his details were on the QLiTE the moment you picked it up from the top of the car; have you ever mentioned that in any document, in any statement or anything like that?---My addendum statement says that I conducted a search on a QLiTE device, and that search led me to that Fortitude Valley drug related police occurrence. As far as going into that specific detail regarding his record being accessible on that QLiTE, I can’t provide - I haven’t provided that in any statement. I can say that on the QPRIME audit report I believe - and again I don’t have the audit report in front of me, but the searches were conducted around 1520 or 15 [indistinct] that date. At that time Constable Acworth was writing an infringement notice. The only person that could have been accessing that information is - is me.

And what I just played you before about, ‘What’s your name again,’ why are you asking his name when you had it on the QLiTE?---Probably because I put - oh, well, I won’t say probably because I put the QLiTE away, but because I didn’t have the QLiTE in front of me.

It was in your hand, wasn’t it?---As you said - - -

It was in your hand, wasn’t it?---Yeah.

Yes?---But my response to that would be that Constable Acworth was writing an infringement notice at the time with her driver’s - with his driver’s licence, Mr Wakefield’s driver’s licence, in her hand and had probably just written his name. I had a momentarily lapse as to what his first name was. I just called out to Constable Acworth, ‘What’s his name again?’ It seemed the fastest way to get that information.”^[37]

75. [75]
    Much of Sergeant Adornato’s evidence is unsatisfactory and demonstrates that his primary goal was to give evidence justifying the search rather than truthfully and responsively answering the questions asked of him.  His answers in this passage are an example.  At one stage, he said he asked Constable Acworth for the applicant’s name because he did not have the QLiTE in front him.  When the obvious was pointed out to him, namely that he had the QLiTE in his hand, he then claimed to have a momentary lapse of memory as to what the applicant’s name was and that motivated him to ask Constable Acworth.  That was not, in my view, a proper recall of events.  It was just Sergeant Adornato giving an answer which he hoped would remove him from the line of fire of the cross-examination.
76. [76]
    However, it is likely that Sergeant Adornato did know of the applicant’s 2019 conviction when he detained him.  The information was on the QLiTE device and Sergeant Adornato can be seen on the body camera footage accessing the device.
77. [77]
    Sergeant Adornato knew from experience that he could only search the applicant and the car without the authority of a warrant if he held a suspicion on reasonable grounds that drugs were in the vehicle.  Establishing that reasonable suspicion was an important issue and Sergeant Adornato knew it was important.  That is why he included in the factual allegations in the police brief a description of the observations he made.
78. [78]
    When asked by the side of the road to state why he detained the applicant, Sergeant Adornato mentioned drug activity in the area, that the vehicle driven by the applicant was not his and that there were personal items in the car which was probably a reference to envelopes, the shirts and the two mobile phones.  Sergeant Adornato’s explanation that the list of considerations which he gave to the applicant by the side of the road was not meant to be exhaustive is unconvincing.  He could have elected not to respond to the applicant but having decided to respond, why not respond fully?  In particular, Sergeant Adornato later said that the applicant was showing indicia of being then under the influence of drugs.  What clearer grounds could there be to suspect that the applicant was in possession of drugs than the fact that he recently ingested some?  Yet that was not mentioned.
79. [79]
    Sergeant Adornato’s evidence that he saw indicia of the applicant being under the influence of drugs is, in my view, an invention.  It is a story which has developed as Sergeant Adornato has struggled to justify the search.
80. [80]
    There is no mention of the indicia in the conversation by the side of the road.  By the time of the police brief, Sergeant Adornato claims to have noticed that the applicant had constricted pupils.  By the time of his first statement, the story had grown so that the indicia now included that the applicant was “nervous and was sweating profusely”.  In evidence before me, the story developed even further.  He said that the applicant’s breathing was unsteady.
81. [81]
    Constable Acworth approached the car armed with a roadside breath testing device.  This was a routine measure that showed that she was alive to the possibility of the applicant at least being possibly under the influence of alcohol.  She observed nothing of the applicant sweating profusely, breathing in an unsteady way or having constricted pupils.
82. [82]
    During his conversation with the applicant, Sergeant Adornato mentioned personal items but not specifically the cooler bag.  In the police brief, the cooler bag is mentioned.  It is not mentioned in Sergeant Adornato’s first statement.  It is not mentioned in the second statement, although it is understandable that the cooler bag is not mentioned in Sergeant Adornato’s second statement.  The second statement was designed only to deal with Sergeant Adornato’s consideration of the July 2019 offences and how that allegedly played upon his reasonable suspicion.  I accept Sergeant Adornato’s evidence that he believed that he could not include evidence of prior offending (the 2019 drug conviction) in his first statement or the factual allegations and so the second statement corrected that error.  The cooler bag is not mentioned in his evidence-in-chief or his cross-examination before me. 
83. [83]
    The various inconsistencies concerning the cooler bag demonstrate how difficult it is, given the unreliability of Sergeant Adornato’s evidence, to identify what he saw and relied upon to form his suspicion before the search and what he is relying upon with the benefit of hindsight.  Of course the cooler bag is important to the case against the applicant as it contained contraband.  The present question though is as to what part it played in Sergeant Adornato’s decision to detain and search.
84. [84]
    In my view, Sergeant Adornato has not been truthful in his evidence.  He has attempted, with the benefit of hindsight, to justify the search and in some respects has simply invented evidence.
85. [85]
    However, he clearly did form a suspicion that there were drugs in the car.  Given the problems with Sergeant Adornato’s evidence, it is difficult to identify what he actually relied upon to form that suspicion.
86. [86]
    I am satisfied that Sergeant Adornato knew of the 2019 conviction before making the decision to search the car.  By the side of the road, Sergeant Adornato mentions the personal items and I draw the inference that what he was referring to are the envelopes and the two mobile telephones.  The only other things that he mentioned when the applicant made his inquiry was the fact that the vehicle was not the applicant’s and the fact that there was drug activity in the West End area.  I am not prepared to find that Sergeant Adornato relied on any other considerations.  To do so would require acceptance of evidence of Sergeant Adornato which is not supported by other evidence.  I decline to do so.
87. [87]
    Those considerations, either alone or in combination, do not give a reasonable basis to form a suspicion that there were drugs present in the car.  The fact that the car was not the applicant’s is intractably neutral.  There was nothing suspicious about the envelopes as Sergeant Adornato admitted in evidence.  There is nothing to suggest that illicit drug activity is greater in West End than anywhere else and, in any event, that just begs the question as to what raises a suspicion that the applicant is involved in that activity.
88. [88]
    In my view, it is likely that Sergeant Adornato has relied almost entirely on the applicant’s prior offending (and perhaps the presence of the two telephones) to base his decision to search the car. They do not constitute reasonable grounds for the belief.
89. [89]
    The search was not one that was authorised by the PPRA and was illegal.

The exercise of the discretion

90. [90]
    There are various discretions which may arise to exclude evidence.^[38]  The discretion to exclude unlawfully or improperly obtained evidence (the Bunning v Cross discretion) involves public policy considerations.  In R v Ireland,^[39] Barwick CJ said this:

“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.”^[40]

91. [91]
    The Bunning v Cross discretion does not concern questions of unfairness to the particular accused but rather the balancing of differing public interest considerations.
92. [92]
    In Bunning v Cross,^[41] R v Ireland was approved and applied and Justices Stephen and Aickin in an often quoted passage, listed a number of considerations which might arise in the exercise of the discretion to exclude unlawfully obtained evidence.  The list is not meant to be exhaustive. It is unnecessary to set out or analyse the passage in detail. The identified considerations can be summarised as follows:

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 limited by the legislation to protect the public.^[42]

93. [93]
    The offences which were detected during the search of the car or as a result of the analysis of the telephone and the search of the applicant’s residence had some serious aspects but were not in the most serious category of drug offences.  Notable features include:

1. The trafficking was over a period of just under a month.
2. The trafficking was in two Schedule 1 drugs, one being cocaine and one being MDMA.
3. The trafficking was not prolific, there being only 16 supplies over the trafficking period, but there were 23 identified customers.  The business was probably bigger than reflected by the supplies which could be detected.
4. The business had some trappings of sophistication in that there were sales on credit, debts were recovered by at least threatened force, there were some agents employed to distribute the drugs and steps had been taken to avoid detection.
5. A significant amount of money was located ($20,590) but no trappings of broader wealth.

94. [94]
    There is no suggestion that the illegality of the search affects the cogency of the evidence.
95. [95]
    Police powers of search and seizure of property impact significantly upon common law rights of members of the public.  Police powers are regulated strictly by Chapters 2 and 7 of the PPRA.  The intention of the legislature is to limit the powers of police so as to protect the interests of members of the public.
96. [96]
    Sergeant Adornato was aware of the limitations of his powers of search without warrant.  The conversations by the side of the road show that he turned his mind to those limitations.  It is impossible to determine either way whether he knew, when he conducted the search, that there were no objectively reasonable grounds for his suspicion.
97. [97]
    The search was a significant invasion of the rights of the applicant.  He was detained and the car was searched.  That led to a further invasion of his rights as his telephone was analysed.  In turn, all that led to the issue of a warrant for the search of his residence. 
98. [98]
    Realising that there may be difficulties in justifying the search, Sergeant Adornato then invented evidence to support his suspicion.  I have found that the evidence given by Sergeant Adornato that the applicant was exhibiting indicia of drug use was positively false. 
99. [99]
    Weighing up the competing discretionary factors, the public interest in the protection of members of the public from unlawful and unfair treatment outweighs the public interest in prosecuting the applicant.  The evidence ought to be excluded.

Orders

100. [100]
     The evidence found by police during the search of the applicant and the car in which he was travelling on 8 January 2020 and any evidence disclosed by inspection of telephones seized from the applicant on that day and the search of his residence on 8 January 2020 be excluded from any trial of charges against the applicant.