R v Pearse[2023] QSCPR 7

SUPREME COURT OF QUEENSLAND

1. [1]
   Dean Philip Pearse (the applicant) seeks an order that all evidence obtained by the police or the prosecution as a result of searches conducted on 18 January 2021 be excluded from evidence at his trial. 

Background

2. [2]
   The applicant is charged with four counts on an indictment: trafficking in a dangerous drug between 25 March 2020 and 9 January 2021; possessing a Samsung mobile phone used in connection with trafficking in a dangerous drug on 18 January 2021; unlawful possession of more than 2.0 grams of the dangerous drug methylamphetamine on 18 January 2021; and unlawful possession of more than 2.0 grams of the dangerous drug 3,4-Methylenedioxymethamphetamine (MDMA) on 18 January 2021.  Each count alleges a contravention of the Drugs Misuse Act 1986 (Qld) (DMA).
3. [3]
   The Crown case against the applicant is set out in a statement of facts.  The applicant’s counsel, Mr Kennedy, annexed a copy of it to his written submissions.
4. [4]
   According to the statement of facts, the third count on the indictment is for possession of four clip seal bags containing 3.225 grams of pure methylamphetamine within a substance weighing 4.986 grams, and the fourth count is for possession of a clip seal bag containing 2.829 grams of pure MDMA within 8.038 grams of substance.  The two quantities of dangerous drug were found in a search of a red Mitsubishi Triton (the Triton) conducted by police on 18 January 2021.
5. [5]
   The statement of facts recites five summary charges (possessing: digital scales; a spoon and straw; numerous clip seal bags; two glass pipes; and another set of digital scales).  These charges also depend on the evidence that they were found in the search of the Triton.
6. [6]
   According to the statement of facts, a black Everest bum bag and a backpack were found in the Triton.  The black bag contained the four clip seal bags of methylamphetamine, digital scales, spoon and straw, and the numerous clip seal bags. The backpack contained the passenger’s wallet, two glass pipes, a clip seal bag with the MDMA, and the other set of digital scales.  The applicant accepted ownership of the items in the bum bag and denied ownership of the items in the backpack.  This is consistent with the recordings and transcripts referred to below.
7. [7]
   The statement of facts says the information about trafficking was found on further analysis of the applicant’s phone “seized during the course of the search.”  I have therefore assumed the lawfulness of the seizure and later examination of the mobile phone depends on the lawfulness of the search of the Triton.  The information obtained from the mobile phone has been used to fix the end date of the period of trafficking in dangerous drugs alleged in count 1.  The start date appears to be derived from another source of evidence.
8. [8]
   Although the application refers to “searches”, it appears the only evidence obtained was from the search of the Triton.  It does not appear anything was found in a search of the applicant, by checking inside his pants, after the search of the Triton had been completed.  It follows that the presently relevant search is that of the Triton.

The present issues

9. [9]
   The issues for decision are whether the search of the Triton on 18 January 2021 was unauthorised and, if so, whether this enlivens a judicial discretion to exclude the evidence derived from the searches.  For the applicant, it was submitted that the search of the Triton was illegal because the interception of the vehicle prior to the search was not authorised and because the subsequent search was also not authorised.  The applicant submitted that the judicial discretion to exclude the evidence obtained by the search should be exercised on grounds of public policy.

The evidence

10. [10]
    The only evidence before the Court was that of two police officers, Detective Sergeant Jedrasiak (Officer Jedrasiak) and Plain-Clothes Senior Constable Kerr (Officer Kerr).  They each gave evidence of what occurred on 18 January 2021 in the minutes before the searches.  Each was cross-examined.  Their evidence is summarised below.  Both officers were based at North Brisbane Criminal Investigation Branch (North) at Carseldine.  Officer Jedrasiak decided to intercept the Triton, to speak with the driver.  He also directed the search of the vehicle.  It follows that the presently relevant evidence of Officer Kerr is that which confirms or corroborates the relevant evidence of Officer Jedrasiak, and any relevant thing she said to him, up to the time he directed her to undertake the search.
11. [11]
    About 12.40pm on 18 January 2021, Officer Jedrasiak was driving a Hyundai Santa Fe (the Santa Fe) along Stafford Road, Stafford, in a westerly direction.  It was an unmarked police car.  Officer Kerr was in the front passenger seat.  Officer Jedrasiak stopped the Santa Fe on Stafford Road to turn right into Buddina Street.
12. [12]
    The short part of Buddina Street that joins Stafford Road is a two-way street.  It runs from Stafford Road to meet Lutana Street at the southern end of a public park.  Lutana Street is a one-way street running in a northerly direction from its intersection with Buddina Street along the western side of the park to intersect with Wayland Street.  On the other side of the park, a section of Buddina Street is one-way, running from Wayland Street in a southerly direction along the eastern side of the park to meet back at Lutana Street.  Wayland Street joins the two one-way sections of street.  The witnesses described a “circuit” formed by Lutana, Wayland, and Buddina Streets as a type of large “roundabout” around the park.
13. [13]
    The police officers were intending to go to a location in the one-way section of Buddina Street.  To reach it from Stafford Road, they intended to drive north on the short two-way part of Buddina Street, continue north on Lutana Street, then east along Wayland Street, before they could turn right into the one-way section of Buddina Street and drive south to their destination.
14. [14]
    While waiting to turn from Stafford Road, Officer Jedrasiak saw the Triton turn (apparently also from Stafford Road) into the short part of Buddina Street.  He then drove the Santa Fe into the same short part of Buddina Street off Stafford Road.  Both police officers saw the driver of the Triton attempt to turn the vehicle right from the two-way part of Buddina Street towards the part of Buddina Street that is one way in a southerly direction.  Being unable to turn right, the driver of the Triton changed course and rapidly accelerated northward up Lutana Street.
15. [15]
    Both police officers observed the driver of the Triton weave the vehicle along Lutana Street, dodging cars parked on each side of the street, doing so at what appeared to them a speed in excess of the local speed limit.
16. [16]
    The Triton was travelling on the police officers’ intended route.  As he drove behind the Triton, Officer Jedrasiak observed that it continued to be driven at rapid speed along Wayland Street and then down the one-way section of Buddina Street.  He said he saw a mobile telephone mounted on the dashboard of the Triton, which the driver seemed to be touching with his hand.
17. [17]
    While they were following the Triton around the Lutana, Wayland, and Buddina Street circuit, Officer Kerr searched the registration number for the Triton using a police-issued iPad.  According to the search, the applicant was the owner.  Officer Kerr then searched the applicant’s name on the same device for police information about him.  This search reported that police were holding intelligence concerning the applicant and drug related activity.  She told Officer Jedrasiak about the results of her searches. Neither officer knew whether the applicant was driving the Triton.
18. [18]
    When the Triton travelling south on Buddina Street, Officer Jedrasiak decided that he would follow it and stop the vehicle to do a licence check of the driver and to speak to the driver about driving without due care and attention.  For this reason, he did not stop the Santa Fe at their intended destination in Buddina Street.  Instead, he followed the Triton down Buddina Street.
19. [19]
    As the Triton approached the intersection of Buddina and Lutana Streets, back at the southern end of the park, it turned left off the street into an open-air carpark at the rear of the shops on Stafford Road.  Officer Jedrasiak followed it in the Santa Fe.  The police officers observed the driver driving the Triton, at what they considered an excessive speed, through the carpark and into an underground parking space.  There, they saw the driver stop the Triton abruptly.  Officer Jedrasiak parked the Santa Fe about two metres behind the Triton in the underground parking area.
20. [20]
    The two police officers stepped out of the Santa Fe and walked to the Triton, so that Officer Jedrasiak was standing outside the driver’s window and Officer Kerr was standing outside the front passenger window.  As Officer Jedrasiak approached the driver’s window, he saw what appeared to be a video call on the dash-mounted mobile telephone.
21. [21]
    The applicant was in the driver’s seat of the Triton.  Officer Jedrasiak asked him if he had a driver’s licence.  When he answered positively, Officer Jedrasiak asked him to produce the licence.  In this way he identified the driver as the applicant.
22. [22]
    While he was speaking to the applicant about his driver’s licence, Officer Jedrasiak made some observations.  He described the applicant as fit and of an athletic build.  The applicant had very pale skin, eyes that were glassy and sunken, and sores about his face and body.  From his experience as a police officer dealing with offenders who were users of dangerous drugs, Officer Jedrasiak thought the applicant looked like he may be a steroid user.  He also thought the sores were of a kind that he had seen on users of methylamphetamine.
23. [23]
    The applicant’s demeanour was polite and reasonable, and not aggressive or abusive.  Officer Jedrasiak told the Court he thought the applicant was trying to placate him or trying to “win him over.”  Officer Jedrasiak knew from Officer Kerr that the Triton was registered in the applicant’s name.  He had identified the applicant as the driver from his driver’s licence.  The applicant was, in all relevant senses, in possession of the Triton.
24. [24]
    Officer Jedrasiak saw that the applicant had a mobile phone on his lap, in addition to the mobile phone attached to the Triton dashboard.  Officer Jedrasiak said that, in his experience as a police officer, he had observed that the use of multiple mobile phones was a characteristic of persons dealing in dangerous drugs.  He said such persons commonly have a phone for unlawful activity and another for personal use.
25. [25]
    While standing by the driver’s window, Officer Jedrasiak observed the person in the front passenger seat of the Triton.  The passenger was moving around and looked quite unsettled.  He observed the passenger to be of an even paler complexion than the applicant.  He described it as an unhealthy paleness.  He also observed that when Officer Kerr asked the passenger for his name, the passenger was evasive in reply.  Officer Jedrasiak told the Court that the passenger’s behaviour made him suspicious that there might be dangerous drugs in the car.
26. [26]
    At this point, Officer Jedrasiak decided he would detain the two occupants of the Triton, to search them and the Triton for dangerous drugs.  He told the applicant and the passenger what he was going to do.  The applicant and the passenger stepped out of the vehicle.  Officer Jedrasiak thought the passenger was trying to retrieve some identification from his clothes.  As the passenger did so, he started to move slowly to the rear of the Triton.  When the passenger reached the gap between the Triton and the Santa Fe, he turned and ran away.  Neither police officer pursued the fleeing passenger.  Each explained the decision to remain as based upon a concern about the safety of the other officer.
27. [27]
    Officer Jedrasiak then placed the applicant in handcuffs.  He said this was also a step taken to protect the safety of Officer Kerr and his own safety.  Officer Jedrasiak then directed Officer Kerr to conduct a search of the vehicle.  Officer Jedrasiak activated a digital audio recording device.  A few moments later, Officer Kerr activated a similar device.  The recordings and transcripts were tendered at the hearing.  Neither officer had a body-worn camera.

The recordings and transcripts

28. [28]
    The recordings and transcripts commence at 12:47pm on 18 January 2021.  They record that Officer Jedrasiak told the applicant:

“[Y]ou’ve been detained in relation to a search of the vehicle. Your good friend’s just taken [a bunk] though.  …  Yeah so which is a bit unfortunate so-  … Yep so as a result ah I’ve detained you in re-, relation to a, a drug search of the vehicle alright …”

29. [29]
    Officer Jedrasiak asked the applicant for his “full true and correct name”.  Officer Jedrasiak then advised the applicant of his rights.  The applicant said he understood the warnings. When asked whether there was anyone he wished to speak to, the applicant said, “Probably my lawyer I guess.  … But I don’t even know what for yet.”
30. [30]
    Officer Jedrasiak then told the applicant:

“So mate, we’ve intercepted you in relation to your manner of driving alright and obviously I’ve pulled up mate there was some indicators to me that have suggested we’re obviously going to detain for the purposes of the search mate we’ve done that now”.

31. [31]
    A few minutes later, Officer Jedrasiak and the applicant had the following exchanges:

“SGT JEDRASIAK: … so look mate what we’ve done during-, during the search we’ve obviously located some things alright some drug related items.

PEARSE: Okay.

SGT JEDRASIAK: Alright so as you can see we’re obviously investigating a drug related offence.

PEARSE: Okay. … I thought this was a random pull over.

SGT JEDRASIAK: Well mate like I told you earlier we’ve detained you for the purpose of a ah drug related search alright.

PEARSE: So it wasn’t for erratic driving it was for a drug related search.

SGT JEDRASIAK: We pulled you over because of your erratic driving alright and I’ve seen you obviously your eyes are a little bit glassy- … Yeah well mate obviously a couple of those indicators your manner of driving [you’re] on the phone mate straight away we-

PEARSE: Been on my phone?

SGT JEDRASIAK: … yeah your phone with the ah the video call that was going on?

…

SGT JEDRASIAK: Yep.  Well mate like I said a couple of those indicators for us obviously we-, means we’re going to have a search of your vehicle.

PEARSE: Yeah …

SGT JEDRASIAK: Your mate’s legged it.”

32. [32]
    The applicant was released from the handcuffs, after the search.  He was then issued with a receipt for the items seized by the police officers.  He was given a notice to appear in the Brisbane Magistrates Court and a notice requiring him to attend the Pine Rivers Watchhouse to be photographed and fingerprinted within seven days.  Officer Jedrasiak then informed the applicant he was free to go.
33. [33]
    At this point the recording ends.  Officer Kerr noted the time to be 1:25pm.  The whole recording is about 38 minutes.

Authority to prevent or hinder a person in control of stopped car from departing

34. [34]
    For the applicant, Mr Kennedy submitted that Officer Jedrasiak had no lawful authority to park the Santa Fe behind the Triton and to ask questions of the applicant about his driver’s licence.
35. [35]
    Mr Kennedy based this submission on s 60 of the Police Powers and Responsibilities Act 2000 (Qld) (the PPRA).  That provision is, relevantly, in these terms:

“60 Stopping vehicles for prescribed purposes

1. A police officer may require the person in control of a vehicle, other than a train or a vehicle being pulled by an animal, to stop the vehicle for a prescribed purpose.

2. The person must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty—

3. The prescribed purposes are as follows—

1. for enforcing a transport Act …;

2. to check whether … the person is complying, with a transport Act …”

36. [36]
    Mr Kennedy submitted that s 60 only authorised a police officer to stop a vehicle that was moving.  He submitted the provision did not authorise Officer Jedrasiak to park behind a vehicle that was already stopped to prevent or hinder the vehicle from leaving its parked position.
37. [37]
    I do not accept Mr Kennedy’s submission that there is a relevant or meaningful distinction between stopping a moving vehicle – to enforce a transport Act or check whether the driver is complying with a transport Act – and parking behind a vehicle that has just stopped to prevent or hinder the driver of the vehicle from driving it away – for the same purpose.  In either scenario, the officer has stopped the vehicle.
38. [38]
    Officer Jedrasiak did not have to use the s 60 power to stop the Triton while it was in motion, because it had stopped in the undercover carpark.  If, as Mr Kennedy submitted, by parking the Santa Fe behind the Triton, Officer Jedrasiak was stopping the Triton from leaving the car park, then that conduct was authorised by s 60.^[1]
39. [39]
    Mr Kennedy also submitted that s 60 did not authorise a police officer to ask questions of a driver of a parked vehicle, including asking the driver to produce a driver’s licence.  This may be so.  Section 60 does not deal specifically with the production of a driver’s licence or questioning.  A police officer, who finds a person committing an offence against the TORUM Act, may require the person to produce their driver’s licence for inspection pursuant to s 58(1)(a) and (2) of the PPRA.  Officer Jedrasiak was in that position.
40. [40]
    I accept Officer Jedrasiak’s evidence that when he followed and parked behind the Triton, he intended to speak to the driver about driving the Triton without due care and attention.^[2]  It was not put to Officer Jedrasiak that this was not his purpose, nor was it put that he had some other purpose or another predominant purpose.  Although Mr Kennedy referred to R v Davis^[3] in submissions, he did not put to either police witness that they intercepted the Triton to investigate the possibility that the occupants were offending against the DMA.
41. [41]
    It is not contended that Officer Jedrasiak (or Officer Kerr) asked any questions that required the police officer to give the applicant a warning or caution, or otherwise required statutory authorisation, before he informed the applicant of his decision to search the Triton.

Authority to search a vehicle

42. [42]
    The authority conferred on a police officer by s 60 of the PPRA does not extend to a search of a person or a vehicle.  A police officer’s authority to stop, detain persons and search vehicles is conferred by ss 31 and 32 of the PPRA.  The relevant parts of those provisions are 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;

…

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).

32 Prescribed 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

…

6. may have been used, is being used, is intended to be used, or is primarily designed for use … for the administration of a dangerous drug;”

43. [43]
    Section 31 is concerned with the detection of other criminal offences.^[4]  It authorises a police officer to search a vehicle only if the officer “reasonably suspects any of the prescribed circumstances … exists”.  Although s 31 authorises a police officer to stop a vehicle, it does not authorise an officer to do so for the purpose of enforcing or checking compliance with a transport Act. 
44. [44]
    If Officer Jedrasiak reasonably suspected there was something in the Triton that may be an unlawful dangerous drug, or may have been used, intended to be used, or primarily designed for use for the administration of a dangerous drug, then he was authorised to stop the Triton, detain it and the applicant and the passenger as its occupants, and search the vehicle for anything relevant to an unlawful dangerous drug or something used, intended for use, or designed for use for the administration of an unlawful dangerous drug, being in the vehicle.
45. [45]
    For the purposes of the PPRA, a police officer reasonably suspects something if the officer suspects the thing “on grounds that are reasonable in the circumstances.”^[5]
46. [46]
    The concept of reasonable suspicion has been the subject of well-established common law authority, as Dalton J (as her Honour then was) identified in R v Fuentes, drawing on and summarising the authority in this way:

“A suspicion and a belief are different states of mind.  A suspicion is a state of conjecture or surmise.  It is more than idle wondering.  It is a positive feeling of apprehension or mistrust, but it is a slight opinion without sufficient evidence.  Facts which reasonably ground a suspicion may be quite insufficient to reasonably ground a belief.  Nonetheless, to have a reasonable suspicion some factual basis for the suspicion must exist.  There must be sufficient factual grounds reasonably to induce the suspicion.  The facts must be sufficient to induce the suspicion in the mind of a reasonable person.  The suspicion must be reasonable, as opposed to arbitrary, irrational or prejudiced.”^[6]

47. [47]
    The key question is whether Officer Jedrasiak suspected on grounds that were reasonable in the circumstances that something, which may be an unlawful dangerous drug or had been, was intended to be or was designed to be used for administering a dangerous drug, was in the Triton.
48. [48]
    Officer Jedrasiak identified the following matters as the factual basis for his suspicion:

    1. He relied upon the physical appearance of the applicant, with his build, very pale skin, and glassy and sunken eyes as a basis to suspect possible use of a steroid^[7] and with his facial and body sores as a basis to suspect possible use of methylamphetamine.^[8] 
    2. He relied upon the applicant having two mobile phones in use at the same time as a basis to suspect possible dealing in dangerous drugs.
    3. He relied upon the passenger’s unsettled behaviour and evasive answers as a basis to suspect that there may be dangerous drugs in the Triton.
49. [49]
    I reject Mr Kennedy’s submission that these matters are “tenuous and do not provide a proper factual basis” for a reasonable suspicion.  Each of Officer Jedrasiak’s factual observations pointed to a possible association with the use and possession of dangerous drugs.  Collectively, they were reasonable grounds for a positive feeling of apprehension that something that may be a dangerous drug (or something that had been used or was to be used to administer a dangerous drug) was in the Triton.  The grounds for Officer Jedrasiak’s suspicion were reasonable in the circumstances.  His was a reasonable suspicion.
50. [50]
    A few minutes before Officer Jedrasiak made the decision to detain the applicant and the passenger, and search them and the Triton, Officer Jedrasiak had seen the applicant drive the Triton along Lutana, Wayland and Buddina Streets erratically and apparently in excess of the speed limit.  He was also aware of the search information about the applicant, which Officer Kerr had read to him during the drive.  These matters could have added to, and would not have detracted from, the feeling of apprehension consciously based on the facts identified by Officer Jedrasiak.
51. [51]
    Before Officer Jedrasiak directed Officer Kerr to conduct the search and before the search was undertaken, the passenger in the Triton fled the scene.  His flight gives an insight into the extent of the passenger’s unsettledness observed by Officer Jedrasiak.  It was a further fact to induce a person in the position of Officer Jedrasiak to feel a positive apprehension that there was a dangerous drug or something that had been used or was to be used to administer a dangerous drug in the Triton.
52. [52]
    On the evidence, I am satisfied that by the time the search was conducted, Officer Jedrasiak reasonably suspected circumstances prescribed in s 32(1)(c) and (f) of the PPRA.  It follows that he was authorised to detain the applicant and conduct a search of the Triton pursuant to s 31(1).

Discretion to exclude evidence

53. [53]
    The evidence obtained by the search of the Triton is relevant to the Crown’s allegations that the applicant committed the offences set out in the indictment and the statement of facts.  Therefore, the evidence is admissible at the trial of the applicant for those alleged offences.
54. [54]
    As the search of the Triton on 18 January 2021 was not unlawful, there is no basis to enliven the discretion to exclude the evidence derived from the search from evidence at the applicant’s trial, of the kind referred to in Bunning v Cross.^[9]
55. [55]
    In exercising that kind of discretion, the Court must balance the public interest in bringing to conviction those who have committed criminal offences against the public interest in the protection of the individual from unlawful and unfair treatment.^[10]  As Mr Kennedy submitted, the Parliament requires police officers to comply with the PPRA, and the Parliament has made one of its express purposes “to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers” under it.^[11]  As well, the Court may exercise the discretion to protect the integrity and reputation of the processes of the Court in the criminal justice system.^[12]
56. [56]
    If the search of the Triton had not been unauthorised by s 31(1),^[13] then I would not have exercised the discretion to exclude the evidence obtained through the search from the evidence at the applicant’s trial.  My reasons are as follows.
57. [57]
    First, the evidence obtained in the search is cogent and important.  The evidence from the mobile phone goes to help prove the applicant trafficked in dangerous drugs for a period of about nine months.  The evidence of the presence of the two different dangerous drugs and their quantity is the sole evidence for the two possession counts.   Without the evidence from the search, those counts on the indictment could not proceed.  As Mr Kennedy submitted, conviction on these alleged offences would ordinarily result in a sentence including a period of imprisonment.  Trafficking and possession of more than 2.0 grams of methylamphetamine and more than 2.0 grams of MDMA are each a very serious offence, which carries a maximum penalty of up to 25 years imprisonment. 
58. [58]
    Second, the nature of the search undertaken by Officer Kerr (at the direction of Officer Jedrasiak) did not affect the cogency of the evidence obtained by it.  The applicant was present during the search.  The police officers activated their digital audio recording devices.  The recordings and the transcripts are available.  There is no reason to think that the search was conducted in a way that did not provide all the proper safeguards against evidence being improperly placed in the vehicle.^[14]  There is no issue about the reliability of the fruits of the search.
59. [59]
    Third, there was no deliberate non-compliance or flouting of the law by a police officer.  The evidence of Officer Jedrasiak was not challenged in these respects.  I am satisfied he thought he was acting lawfully in following and parking behind the Triton to speak to the driver about driving the Triton without due care and attention.  He thought he was authorised to ask the applicant for his driver’s licence.  He thought the appearance of the applicant, the behaviour and appearance of the passenger, and the presence of two mobile phones apparently in use, were a reasonable factual basis for a suspicion that the applicant had, or the Triton contained, unlawful dangerous drugs.  Officer Jedrasiak did not arbitrarily or capriciously decide to stop the Triton and conduct the search.  He did not engage in serious misconduct.  By declining to exclude the evidence, the Court would not be encouraging unlawful conduct.  Nor would the Court be approving any deliberate or reckless breach of police powers or responsibilities.  There is no evidence that the police officers were part of some systematic misuse of the authority conferred by s 60 to investigate drug offences and so avoid the necessity to form a relevant reasonable suspicion under s 31 of the PPRA.  This is not an instance where there is a “need for the court to deter police from breaching their duty” as Mr Kennedy submitted.
60. [60]
    I am also unable to accept Mr Kennedy’s written submission that the officers could with “ease” have lawfully searched the Triton.  As the Crown submissions noted, any lawful search, with or without a warrant, could only occur if a person had a relevant reasonable suspicion.  A magistrate or justice may issue a warrant only if satisfied that there are reasonable grounds for suspecting, for example, evidence of the commission of an offence is at the place to be searched.^[15]

Final disposition

61. [61]
    The application for a ruling – excluding the evidence obtained as a result of the searches on 18 January 2021 from evidence at the applicant’s trial – should be dismissed.