R v James[2024] QSCPR 5

SUPREME COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant is charged on indictment that on 24 May 2022:

   1. she unlawfully had possession of the dangerous drug methylamphetamine in a quantity exceeding 2.0 grams;
   2. she unlawfully possessed a relevant substance, 1,4 Butanediol; and
   3. she had in her possession clip seal bags for use in connection with the commission of the crime of possessing dangerous drugs.
2. [2]
   The items the subject of the three counts were found during the search of the applicant’s rented unit in the Cloudland apartment complex at Bowen Hills.
3. [3]
   On 24 May 2022, police entered the unit without a warrant and without the applicant’s consent.  The applicant and a male person were present at the unit when the police entered.  Upon entering the applicant’s bedroom, police observed a large bag containing a crystalline substance.  Police then declared an emergent search,^[1] locating the relevant items.
4. [4]
   The applicant has applied under s 590AA of the Criminal Code for a ruling that the evidence obtained from the search be excluded from her trial.  She submits that the entry into her unit without a warrant and without her consent was not authorised.
5. [5]
   If I find that entry into the unit was lawful, the applicant does not challenge the lawfulness of the search which was subsequently conducted.^[2]
6. [6]
   If I conclude that the entry into the unit was unlawful, I must then consider whether to exercise the discretion to exclude the evidence obtained during the search which followed, on the basis that it was unlawfully or improperly obtained.^[3]

The statutory power to enter a place without a warrant

7. [7]
   The police relied upon s 21 of the PPRA to enter the applicant’s unit.  That section relevantly provides:

“21 General power to enter to arrest or detain someone or enforce warrant

1.  A police officer may enter a place and stay for a reasonable time on the place—

… 

(b)  to arrest a person named in a warrant; …

2.  If the place contains a dwelling, a police officer may enter the dwelling without the consent of the occupier to arrest or detain a person only if the police officer reasonably suspects the person to be arrested or detained is at the dwelling.”

8. [8]
   The applicant’s unit was a dwelling.  Accordingly, s 21(2) only provided authority to enter the unit without the applicant’s consent if the police reasonably suspected that the person to be arrested or detained was at the unit.
9. [9]
   The term “reasonably suspects” is defined in Schedule 6 to the PPRA to mean “suspects on grounds that are reasonable in the circumstances”.  This concept was summarised by Dalton J (as her Honour then was) in R v Bossley:^[4]

“There is also well-established common law authority in relation to both the concept of suspicion and the concept of reasonable suspicion.  The meaning of suspicion in this context is discussed by the High Court in George v Rockett.  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 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. …”

10. [10]
    In my view the statutory definition of “reasonably suspects”, considered in the context of s 21, directs attention to the presence of an actual suspicion in the mind of the relevant officer when the power to enter a dwelling is exercised and whether that officer’s suspicion is based on grounds that are reasonable in the circumstances. That is, the circumstances existing at the time the power is exercised must be sufficient to induce the suspicion in the mind of a reasonable person in the circumstances confronting the police officer.

Evidence

11. [11]
    Four police attached to the Fortitude Valley Tactical Crime Squad entered the applicant’s unit at about 1.20 pm on 24 May 2022. Those officers were Senior Constable Tighe, Senior Constable Mamaril, Senior Constable Mannix and Senior Constable Stewart. At that time, SC Tighe held the rank of acting sergeant. Only SC Tighe gave oral evidence at the hearing of the application. He was the senior officer present when police entered the applicant’s unit.
12. [12]
    SC Tighe stated that police attended the applicant’s unit because they had received information that a wanted person named Neuman Heilbronn was at the unit. Mr Heilbronn was wanted on a return to prison warrant issued on 19 April 2022.^[5] Prior to receiving the information which led police to attend the applicant’s unit, SC Tighe  and other officers from the Fortitude Valley Tactical Crime Squad had been trying to locate Mr Heilbronn for about one month. Police had attended the address for Mr Heilbronn shown on the warrant as well as houses where known associates of Mr Heilbronn lived. SC Tighe was aware that other officers had unsuccessfully attempted to track Mr Heilbronn’s mobile phone. SC Tighe said that Mr Heilbronn had been actively avoiding police during that period.

13. [13]
    At about 10.30am on 24 May 2022, SC Tighe and SC Mannix intercepted a motor vehicle on Ann Street in Brisbane.  After speaking with the passenger in that vehicle, SC Mannix placed that person under arrest in connection with some outstanding warrants.  While that person was in custody at the Brisbane City watchhouse she consented to SC Mannix performing a search of her mobile phone. During that search, SC Mannix took a photograph of a text message in an exchange with a contact identified as “Fatty” and by the initials “FN”.^[6] SC Mannix sent the photograph of the text message to SC Tighe.
14. [14]
    SC Tighe was aware from dealings he had with Mr Heilbronn over the years that his nickname was “Fatty”.  
15. [15]
    The text message shown in the photograph as having been sent by “Fatty” relevantly stated:

“…  I am at Cloudland – 7 Boyd Street, Bowen Hills. Dial #099 at the gate, then follow the driveway until you reach the visitor parking marked in the screenshot.  I am in Nebula, unit 99. The intercom is next to the mailboxes.”

16. [16]
    On its face, this was a statement by “Fatty” that, when he sent the text message, he was at 99/7 Boyd Street, Bowen Hills (the Cloudland address).^[7] The photograph of the text message does not contain any information as to when the message was sent.
17. [17]
    After SC Tighe reviewed the photograph of the text message from SC Mannix, he collected SC Mannix from the watchhouse and arranged to attend the Cloudland address with the other officers. The officers arrived at the applicant’s unit within about an hour of SC Tighe having received the photograph of the text message from SC Mannix.
18. [18]
    SC Tighe said that he went to the Cloudland address because he believed that Mr Heilbronn was staying there.  He said that he “wanted to make inquiries” as to whether Mr Heilbronn was residing there and to arrest him if he was there.  SC Tighe was aware that he could obtain a warrant to enter a dwelling.  He did not do so in this case because he believed that police had power under s 21 of the PPRA “to enter that dwelling and make inquiries”.^[8] 
19. [19]
    As to his basis for believing that Mr Heilbronn was at the Cloudland address, SC Tighe said he was relying on the text message he had received from SC Mannix and his knowledge that Mr Heilbronn had previously stayed in short-stay accommodation.   In that context, SC Tighe said that the police attendance at the applicant’s unit “was just another inquiry that we were going to attend”.^[9]

20. [20]
    The police entered the applicant’s unit using a key provided to them by the building manager.  When SC Tighe entered the unit, he heard people at the other end of the hallway.  He went down that hallway and into a bedroom where he observed the applicant and a male person.  While SC Tighe was in the bedroom, he observed what he believed to be a large amount of methylamphetamine in plain sight next to the bed.  SC Tighe’s evidence that the substance was in plain sight was confirmed by footage recorded on his body worn camera.^[10]
21. [21]
    SC Tighe said that, from that point, securing what he believed to be methylamphetamine became a priority.  He detained the applicant and the male person and declared an emergent search under s 160 of the PPRA to prevent the loss of evidence.  He said that he was concerned that if the police had left the room to obtain a search warrant, the substance he believed to be methylamphetamine might be lost.
22. [22]
    On 25 May 2022, SC Tighe prepared an application to the Brisbane Magistrates Court for a post-search approval order under s 161 of the PPRA.^[11] On the second page of the application, SC Tighe stated that the text conversation which caused police to attend the applicant’s unit occurred on 22 May 2022.  He stated that SC Mannix had conducted checks on the contact stored in the phone as “Fatty NewMort” which revealed that contact to be Mr Heilbronn.  He stated that, based on that information, he believed that Mr Heilbronn was at the Cloudland address.  At the end of the application, SC Tighe declared, under an oath sworn before a Justice of the Peace, that the contents of the document were true and correct to the best of his knowledge.
23. [23]
    When cross-examined as to the course of events by which he became aware of the text message from “Fatty”, SC Tighe said that SC Mannix had telephoned him while he was engaged on another job and told him she had seen the text message when searching the phone of the person she arrested after the traffic intercept.  SC Tighe asked SC Mannix to send him a copy of the text message so he could look at it.  SC Tighe did not look through the phone himself.  No copy of the arrested person’s phone was downloaded using the Cellebrite machine.
24. [24]
    SC Tighe made no independent inquiries about the phone number from which the text message was sent or the date the message was sent, but said he believed that SC Mannix had made checks on the phone number.  
25. [25]
    Although SC Tighe initially accepted the suggestion that the photograph of the text message was the full extent of the information SC Mannix sent to him, and that he was not given the results of any checks on the phone number, he later stated that he trusted SC Mannix to perform checks on that number and that – although he could not now specifically recall – he believed SC Mannix would have conducted checks and he would have discussed those checks with her.   
26. [26]
    When asked whether he remembered being told when the text message was sent, SC Tighe stated that he believed SC Mannix would have checked that and, although he was unable to recall the dates and times, he was going off the information which SC Mannix had received.  
27. [27]
    Later in the cross-examination, the following exchange occurred:^[12]

“You’ve received a single text message from a person called Fatty?---Yes.

In your mind, you put two and two together that that could be Heilbronn?---I was - received the information from Steph.^[13] So she’s - I’m not sure if Steph’s had a conversation with this person that owned the phone, or what and again, I’m not in a position to say, oh, then Steph told this, because I’m not making things up as I go, I’m not trying to cover myself, or anything like that, I’m just saying that I acted on the information that Steph would have given me at the time.  This was over a year ago, I can’t remember the exact information she was giving me and I’m not speaking out of school about her or about myself.  I know that I’ve received valid information from her - what I believe to be valid information.

You don’t even know what you received from her, sir?---Well, at the time I would have, but I don’t remember from then.

And take from me I’m not criticising you - - -?---No, no.  It’s all good - - -  - - - or saying there’s any malfeasance - - -?---Yeah.  Yeah.

So don’t think I’m trying to - - -?---No.  No, I know that.

- - - get you, aha?---Yeah.

But I want to be clear - - -?---Yeah.

- - - you don’t remember the information, if any, you were told from her?---Correct.

You don’t remember making any checks if that information was valid?---I remember not making checks myself.

And can I take from your evidence that if you had been told from this officer, you quite reasonably assumed that that was reliable information?---Yes.  Correct.

Okay.  And that’s the best you can assist us today?---Correct.  Yeah.”

28. [28]
    SC Tighe said that, before entering the applicant’s unit, he did not make any inquiries of the building manager as to whether there was any CCTV footage which might show Mr Heilbronn entering or leaving the building. 
29. [29]
    Prior to attending the applicant’s unit, SC Tighe made inquiries about the address on QPRIME.  Those inquiries showed that the applicant was linked to the address.  They did not show that Mr Heilbronn had any association with the address.  SC Tighe said he did not contact the applicant before attending the unit to ask whether Mr Heilbronn was at the address.  In re-examination, he explained the reason he took that course was because of his concern that if the applicant had some relationship with Mr Heilbronn she would alert him to the police inquiry and he would have the opportunity to leave the unit before police arrived.

Was entry into the applicant’s unit authorised under s 21?

30. [30]
    The applicant did not challenge SC Tighe’s credibility as a witness.  To the contrary, Mr Longhurst (who appeared as counsel for the applicant) submitted that I would find SC Tighe a completely credible and candid witness.^[14] That accords with my own assessment of the way SC Tighe gave his evidence.
31. [31]
    I accept SC Tighe’s evidence that he and the other officers went to the applicant’s unit on 24 May 2022 because SC Tighe believed that Mr Heilbronn was at the unit.  I also accept that SC Tighe’s intention when he entered the unit was to arrest Mr Heilbronn.^[15] I therefore accept that, for the purposes of s 21(2) of the PPRA, SC Tighe and the other officers entered the applicant’s unit to arrest Mr Heilbronn in circumstances where SC Tighe suspected that Mr Heilbronn was at the unit.

32. [32]
    The question whether entry into the applicant’s unit was authorised by s 21(2) depends on whether SC Tighe’s suspicion was reasonable. That is, would the information which formed the basis for SC Tighe’s suspicion have induced the same suspicion in a reasonable person?
33. [33]
    In submitting that there was not a reasonable basis for SC Tighe’s suspicion, the applicant argued that there was no evidence before the Court (i) that the phone number associated with the contact identified as “Fatty NewMort” was linked in any way to Mr Heilbronn^[16] or (ii) as to when the text message from “Fatty NewMort” was sent.^[17] Having considered the evidence as a whole, I do not accept those submissions. They take no account of the sworn statements made by SC Tighe in the post-search approval application (see [22] above).  Those statements, considered along with the evidence of SC Tighe extracted at [27] above, provide a sufficient basis for me to infer that, prior to the police attending the Cloudland address and effecting entry into the applicant’s unit, SC Mannix:

    1. had received information from inquiries she made when she searched the phone and found the text message sent by “Fatty NewMort” which was consistent with SC Tighe’s statements in the post-search approval application: that is, that the contact identified as “Fatty NewMort” was Mr Heilbronn and that the text message stating that “Fatty NewMort” was at the Cloudland address was sent on 22 May 2022, two days before police became aware of the text message; and 
    2. conveyed that information to SC Tighe at about the time that she informed him of the existence of the text message and sent him a photograph of it. 
34. [34]
    It seems logical to me that SC Mannix would seek information from the owner of the phone about those matters and convey the information she received to SC Tighe, in circumstances where police from the Fortitude Valley Tactical Crime Squad had been seeking to locate Mr Heilbronn. SC Tighe was not taken in cross-examination to his statements in the post-search approval application about the information which caused him to believe that Mr Heilbronn was at the Cloudland address. It was not suggested to him that those statements were untrue.  In those circumstances, I accept the sworn statements made by SC Tighe in the post-search approval application as evidence of the information which caused him to believe that Mr Heilbronn was at the Cloudland address.
35. [35]
    The question then becomes whether the statement in the text message that Mr Heilbronn was at the Cloudland address, considered in circumstances where SC Tighe knew Mr Heilbronn was avoiding police (see [12] above) and that he had previously used short-stay accommodation (see [19] above), was sufficiently cogent to induce a reasonable person to suspect that Mr Heilbronn was at that address when the police entered the applicant’s unit on 24 May 2022.  This requires me to consider whether the information had become stale by the time it came to SC Tighe’s attention.
36. [36]
    As Kourakis CJ recently observed in McHugh v The Queen,^[18] the question whether information has become stale cannot be answered in the abstract and divorced from the facts of each case. In general terms it can be accepted that, where there is information as to the existence of a state of affairs on a particular date, the likelihood that the relevant state of affairs continues to exist may decrease as time passes.  How long after the relevant date such information will remain a cogent reason for suspecting the continued existence of the state of affairs will depend upon the context and the individual circumstances of each case.
37. [37]
    In this case, the period during which the information in the text message remained cogent and capable of supporting a reasonable suspicion that Mr Heilbronn was at the Cloudland address was affected by the fact – which was known to police – that the Cloudland address was not the address given for Mr Heilbronn in the return to prison warrant or an address that Mr Heilbronn was otherwise associated with.  In my view, the more time that passed between Mr Heilbronn sending the text message stating that he is at the Cloudland address and police becoming aware of that text message, the weaker that statement would be as a basis for suspecting Mr Heilbronn remained at the Cloudland address when police received the information.  If the text message had been sent on the morning of 24 May 2022, the likelihood that Mr Heilbronn would still be at the Cloudland address by the time the police saw the text message would be relatively high.  By contrast, if the police had become aware of the text message a week after it had been sent then it would seem less likely that Mr Heilbronn remained at the Cloudland address when police received the information.  
38. [38]
    Here the question is whether the text message having been sent two days before it came to SC Tighe’s attention means that the cogency of the information concerning Mr Heilbronn’s whereabouts on 24 May 2022 was reduced to such a degree that it no longer provided a reasonable basis for SC Tighe’s suspicion.  Although the lapse of  two days falls towards the outer limit of time which could pass before the information is likely to have become stale, I do not consider it exceeded that limit.  That is, the fact that the statement by Mr Heilbronn that he was at the Cloudland address was made two days before SC Tighe became aware of the information did not undermine the reasonableness of SC Tighe’s suspicion when he decided to effect entry under s 21(2) of the PPRA.  In this case, SC Tighe knew that Mr Heilbronn had used shortstay accommodation in the past and that he was actively avoiding police (and thus would be likely to stay at places other than his own address or the addresses of associates who were known to police).  In those circumstances, I am satisfied that the information that Mr Heilbronn had sent a text message two days earlier stating that he was at the Cloudland address was sufficient to induce a reasonable person in SC Tighe’s position to suspect that Mr Heilbronn was at that address on 24 May 2022.  I am not ultimately persuaded that further inquiries of the type suggested to SC Tighe in cross-examination were required before SC Tighe could have reasonably suspected that Mr Heilbronn was at the Cloudland address on 24 May 2022.

39. [39]
    On that basis, the officers’ entry into the applicant’s unit was authorised under s 21(2) of the PPRA.  As the applicant does not separately challenge the lawfulness of the search performed after the police entered her unit, it follows that the evidence obtained from that search was lawfully obtained.  For that reason, the application must be dismissed.