R v Wakefield[2024] QSCPR 8

SUPREME COURT OF QUEENSLAND

Background to the application

1. [1]
   The applicant, Wayne Jason Wakefield, is presently charged with the following offences:

   1. Possessing a dangerous drug, in excess of 2.0 grams (Count 1);
   2. Possessing a dangerous drug (Counts 2-5); and
   3. Possessing a thing used in connection with possessing a dangerous drug (Count 6).
2. [2]
   A trial date has not yet been set.
3. [3]
   In respect of all counts, the Crown case relies upon evidence of items found and seized by police during a search of the applicant’s premises conducted on 19 May 2020 (‘May search’). The search warrant purportedly authorising that search was obtained pursuant to s 151 of the Police Powers and Responsibilities Act 2000 (Qld) (‘PPRA’).
4. [4]
   On 15 January 2024 the applicant filed an application under s 590AA of the Criminal Code 1899 (Qld) seeking to exclude the evidence obtained from the search of the premises.
5. [5]
   The applicant was previously charged with serious drug offences arising from a vehicle search on 8 January 2020 (‘January search’). The January search was later found to be illegal in a decision given by Justice Davis.^[1] As a result, the charges arising from the January search were discontinued. However, at the time of the May search those charges remained pending.

6. [6]
   One of the grounds set out in the application for the issuing of the May search warrant was the fact that the applicant had been charged with the drug offences arising out of the January search.
7. [7]
   The applicant contends that this was the primary ground for obtaining the May search warrant. He submits that without this information there were insufficient grounds to form a reasonable suspicion to support the issue of the May search warrant. He argues the May search warrant was not validly issued and the May search was therefore unlawful. As a consequence, he contends that I should exercise my discretion to exclude the evidence of the items discovered in the May search on public policy grounds.
8. [8]
   The respondent argues that irrespective of the fact that the applicant had been charged with offences arising out of the January search, the grounds listed in the application for the May search warrant were sufficient to grant the search warrant. Alternatively, the respondent submits that, even if I were to find the search was illegal, I would not exclude the evidence in the exercise of my discretion.
9. [9]
   The parties essentially approached this application on the basis that the questions to be decided were:

   1. whether the grounds in the application for the May search warrant were sufficient to give rise to an objectively reasonable suspicion so as to satisfy the requirements in s 151 of the PPRA; and
   2. if the discretion to exclude the evidence on public policy grounds is enlivened, should the evidence be excluded.

May search

10. [10]
    In May 2020 police were investigating a suspect believed to be involved in the supply of dangerous drugs from an apartment complex in Fortitude Valley. Investigations led Senior Constable Murphy to question an employee of the apartment complex about the suspect and their movements. The employee identified that the suspect was often in the company of the applicant who resided in the apartment complex.
11. [11]
    Senior Constable Murphy subsequently conducted an intelligence check on the applicant which identified that an anonymous source contacted the police on or about 18 May 2020. The source advised that the applicant was dealing in a number of different drugs and gave further information about the applicant’s apartment and vehicle. After further checks Senior Constable Murphy became aware that the applicant had been charged with six drug offences in January 2020 and was currently on bail for those offences.
12. [12]
    On 19 May 2020 Senior Constable Murphy made an application before a Justice of the Peace, pursuant to s 150 of the PPRA, for the issue of a search warrant to search the applicant’s premises. He did so on the basis that he suspected that there would be evidence of the commission of an offence under the Drug Misuse Act 1986 (Qld) at the applicant’s property.
13. [13]
    There is no issue between the parties that Senior Constable Murphy identified and relied upon three grounds in the application for the search warrant, namely that:

    1. the applicant was an associate of a person suspected of supplying dangerous drugs and was wanted on an outstanding warrant for failure to appear in court regarding drugs and other matters;

2. an anonymous source had contacted the police regarding the applicant and had advised that he was dealing in dangerous drugs; and
3. the applicant had recently been charged with serious drug offences in January and was on bail for those matters.

14. [14]
    The Justice of the Peace was satisfied, as required by s 151 of the PPRA, that there were reasonable grounds for suspecting warrant evidence or property was at the applicant’s premises and issued the search warrant.
15. [15]
    The warrant was executed on 19 May 2020. During the search of the applicant’s premises the following items were located by police:

    1. a clip seal bag of methylsulfonylmethane, a common cutting agent;
    2. a clip seal bag containing cocaine;
    3. a clip seal bag containing 3,4-methylenedioxymethamphetamine (‘MDMA’);
    4. 5 clear capsules containing MDMA;
    5. 3 tramadol tablets;
    6. 2 clip seal bags containing methylamphetamine;
    7. a vial containing gamma-butyrolactone (‘GBL’);
    8. a red cup containing methylamphetamine;
    9. a bottle of viscous fluid containing GBL; and
    10. a cut down straw, a large quantity of empty clip seal bags, a metal straw, a rolled $5 note, a set of digital scales, and a glass pipe.
16. [16]
    During a pat down search of the applicant police also found:

    1. a clip seal bag containing cocaine; and
    2. $2,200 in $50 notes loose in the applicant's pants pockets.
17. [17]
    In total police located:

    1. 4.829 grams of MDMA in 6.644 grams of substance (72.68% purity);
    2. 1.82 grams of cocaine in 3.251 grams of substance (55.98% purity);
    3. 0.518 grams of substance in which methylamphetamine was detected; and
    4. 525.073 grams of GBL.
18. [18]
    The applicant was subsequently arrested and charged with committing offences relating to the possession of dangerous drugs, based on the evidence acquired from the May search. The alleged offences committed by the applicant are now the subject of the indictment before this Court.

January search

19. [19]
    On 8 January 2020 two police officers on patrol in West End noticed that the applicant was using a mobile phone while driving and pulled him over. One officer walked alongside the car making general observations while the other conducted a roadside breath test. The applicant was subsequently detained for the purposes of conducting a search of the car.

20. [20]
    Amongst other things, under ss 31 and 32 of the PPRA, a police officer who reasonably suspects there are illicit drugs in a vehicle may, without a warrant, stop the vehicle, detain its occupants and search the vehicle, and anything in it, for anything which may be relevant to whether there may be illicit drugs in the vehicle.
21. [21]
    During the search, police found:

    1. 163.645 grams of cocaine;
    2. 20.706 grams of MDMA;
    3. 2.133 grams of methylamphetamine;
    4. a number of strips of lysergide;
    5. envelopes containing cash totalling $20,590; and
    6. a pipe, two sets of scales, a notebook, a capsule filler and two telephones.

22. [22]
    Later that day a warrant was issued for a search of the applicant’s residence. During that search, police located an envelope with writing suggesting a drug transaction and a vacuum sealer machine.
23. [23]
    The applicant was subsequently charged with committing six offences under the Drugs Misuse Act and one summary offence.

24. [24]
    The applicant subsequently made an application under s 590AA of the Criminal Code to exclude the evidence obtained from the search of his vehicle and the later search of his residence. The basis of the application was that the police search of his vehicle was illegal and thus all evidence of the relevant drug items found by police in the applicant’s vehicle and residence ought to be excluded, in the exercise of discretion on public policy grounds. The Crown accepted that the evidence for the six alleged offences derived from the January search.
25. [25]
    On 6 April 2023, Davis J delivered his judgment in respect of the application. With respect to the search of the vehicle, his Honour found that the evidence of the officer who purported to hold the requisite reasonable suspicion to justify the search was unreliable;^[2] that the officer had not been truthful; that he had attempted to justify the search in hindsight; and that in some respects he had simply invented evidence.^[3] His Honour was satisfied that, rather than holding a reasonable suspicion as required by s 31 of the PPRA, it was likely the officer instead relied almost entirely on his knowledge of the applicant’s prior offending to search his car.^[4] Accordingly, his Honour concluded that the search was not authorised by the PPRA and was illegal.^[5]
26. [26]
    After weighing up the competing public policy considerations identified in Bunning v Cross^[6] his Honour concluded that the evidence ought to be excluded.^[7]

Relevant provisions of the PPRA for the May search

27. [27]
    A police officer may make an application, under s 150 of the PPRA, for a search warrant to enter and search a place to obtain evidence of the commission of an offence. Section 150(5)(a) specifies that an application for a search warrant must ‘be sworn and state the grounds on which the warrant is sought.’ The grounds stated in the application for the May search warrant are set out above at paragraph [13].
28. [28]
    Under s 151 of the PPRA a search warrant to enter and search a place may only be issued by the issuer (i.e., a justice, magistrate or judge) if, relevantly, they are satisfied that there are reasonable grounds for suspecting that evidence of the commission of an offence is at the place or likely to be taken to the place in within the next 72 hours.

The requirement of ‘reasonable grounds for suspecting’

29. [29]
    Search warrants authorise the invasion of interests highly valued and guarded by the common law.^[8] A legislative requirement that there are ‘reasonable grounds for suspecting’ ensures these interests are protected.^[9]
30. [30]
    In George v Rockett^[10] the High Court considered that where a statute prescribes that there must be ‘reasonable grounds’ for a state of mind, including suspicion and belief, it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
31. [31]
    The Court noted what Lord Devlin had said in Hussien v Chong Fook Kam^[11], that suspicion, ‘in its ordinary meaning is a state of conjecture or surmise where proof is lacking.’^[12] The Court also endorsed the statement made by Kitto J in Queensland Bacon Pty Ltd v Rees that:^[13]

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’.^[14]

32. [32]
    The Court recognised that ‘some factual basis for the suspicion must be shown.’^[15] Thus, to be reasonable, a suspicion requires a positive feeling of actual apprehension or mistrust which must have an objective basis in fact.^[16]
33. [33]
    It is important to note that it is the issuer who must be satisfied that there are ‘reasonable grounds for suspecting.’^[17] Even if the suspicions of the officer applying for the search warrant are later found to be misguided, the requirement is directed at only the suspicions of the issuer and what they have been told at the relevant time.^[18]

The basis of the application for exclusion

34. [34]
    In this case, the applicant and respondent each contend that I must first decide whether the search warrant application disclosed objectively reasonable grounds for the suspicion, having regard to the ruling given by Davis J and his Honour’s conclusions as to the illegality of the January search. The submissions made on behalf of the applicant suggested that I ought to exclude consideration of any information derived from the January search when determining whether there were objectively reasonable grounds for the required suspicion under s 151 of the PPRA.
35. [35]
    However, in my opinion the parties have approached this matter on a somewhat mistaken basis.
36. [36]
    This is an application made pursuant to s 590AA of the Criminal Code seeking the exclusion of evidence in the exercise of judicial discretion. It is not an application for judicial review. I am not deciding whether the search warrant should be declared invalid because of some failure to satisfy the statutory requirements for its issue. Whether the discretion to exclude the evidence is enlivened and, if so, whether I ought to exercise the discretion in favour of the applicant, does not require me to embark on my own ex-post facto assessment of whether there were ‘reasonable grounds to suspect’ or whether the issuer could properly have been satisfied of that matter at the time the application was made and considered. Collateral attacks on the validity of a warrant are generally limited to considering whether the warrant is valid on its face. No such issue is raised here.^[19] In my opinion, the validity of the search warrant may not be impugned by the present application.
37. [37]
    However, it is not a necessary prerequisite for the exclusion application that it be impugned.
38. [38]
    The first issue that I must consider is whether the Bunning v Cross discretion to exclude the evidence on public policy grounds is enlivened. The discretion is enlivened when the authorities obtain evidence by improper or illegal means then seek to rely on that evidence in a criminal prosecution.^[20]
39. [39]
    At the time Senior Constable Murphy applied for the May search warrant, Davis J had not yet ruled that the search of the applicant’s vehicle was illegal and the charges against the applicant arising out of the January search were still on foot.
40. [40]
    The evidence that is sought to be excluded here was not obtained by any direct illegality or impropriety on the part of the police officers involved in the May search. The warrant was validly issued and the evidence was lawfully obtained as a result of the execution of the warrant.
41. [41]
    Nevertheless, as Davis J subsequently found, the January search was illegal. Police unlawfully searched the applicant’s vehicle when they had no power to do so.
42. [42]
    The question therefore is whether the earlier illegality may form the basis for the present application for exclusion of subsequently obtained evidence. In my view it may. Generally, the discretion arises only where the unlawful or improper conduct is the means by which the evidence was obtained or where the obtaining of the evidence involved the unlawful or improper conduct.^[21] However, there have been cases which recognise that the discretion may be exercised even where there is no strict causal link between the illegal or improper conduct and the obtaining of the relevant evidence.^[22] Nevertheless, there must still be some connection.

43. [43]
    I am prepared to accept that there is a sufficient connection in this case. Part of the information used to obtain the search warrant for the May search was the product of the illegal January search. But for that search, the information would not have been known to police and would not subsequently have been used by them to apply for the May search warrant.
44. [44]
    I conclude the antecedent illegality involved in the January search therefore enlivens the Bunning v Cross discretion to exclude the evidence obtained during the May search.

Exercise of the Bunning v Cross discretion

45. [45]
    Competing considerations concerned with the public interest must be weighed when deciding whether the discretion should be exercised to exclude the evidence obtained in the May search.^[23] On the one hand is the public interest in prosecuting criminal offenders. On the other is the protection of individuals from unlawful and unjust treatment.^[24]
46. [46]
    Where the discretion is enlivened, Stephen and Aicken JJ in Bunning v Cross^[25] identified the following considerations relevant to its exercise:

1. the nature of the offence charged;
2. the probative value of the evidence, and its importance in the proceedings;
3. whether the conduct was deliberate, or resulted from a mistake;
4. whether the nature of the conduct affected the cogency of the evidence so obtained;
5. the ease with which those responsible might have complied with the law in procuring the evidence in question;
6. the legislative intention (if any) in relation to the law that is said to have been infringed; and
7. whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings.

47. [47]
    I set out below my consideration of these factors in so far as they are relevant to this case.

Nature of the offence

48. [48]
    The applicant concedes that drug offences are serious but submits counts 1 to 6 are ‘not the most serious drug charges that this court ever deals with.’

49. [49]
    The respondent submits that the offence of drug possession while on bail for other drug offences is serious offending and should favour the admission of the evidence.
50. [50]
    I accept that the present offences are not the most serious instances of drug offences that might be dealt with by this Court. Nonetheless, they are serious offences. The offence charged in count 1 carries a maximum penalty of 25 years imprisonment. Counts 2 to 5 also carry lengthy maximum sentences of 15 years imprisonment.

Probative value of the evidence

51. [51]
    Neither party made a direct submission on the probative value of the evidence. However, the impugned evidence is essential to the Crown’s case as it comprises the only evidence of the offences charged.
52. [52]
    I consider the probative value and importance of the evidence acquired from the May search is high.

Deliberate or mistaken conduct

53. [53]
    There was no suggestion by either party that Senior Constable Murphy deliberately disregarded the law, or that he was mistaken about whether he was acting legally or not, when relying upon the information arising from the January search as a basis for his search warrant application. That is unsurprising given that the January search was only retrospectively found to be illegal on 6 April 2023.
54. [54]
    Senior Constable Murphy did not deliberately or recklessly rely on information which he knew to be illegally obtained or derived. He was entirely ignorant of any illegal conduct involved in the January search.
55. [55]
    The May search of the applicant’s premises did not itself involve any illegality or unlawful conduct by the searching police. Police acted lawfully on the authority of the search warrant validly issued under s 150 of the PPRA.
56. [56]
    In the circumstances, I conclude that the searching police officers at all times believed they were acting lawfully.
57. [57]
    In contrast, Davis J found the January search was conducted in breach of the PPRA. His Honour noted that it involved a significant invasion of the rights of the applicant and occurred in circumstances where the searching officer was aware of the limitations of his powers to search without warrant. His Honour ultimately concluded that it was impossible to determine either way whether the searching officer knew, when he conducted the search, that there were no objectively reasonable grounds for his suspicion.^[26]
58. [58]
    The fact that police here relied on information that was obtained as a result of a search later found to have been unlawful was inadvertent and unintended.

Cogency of the evidence

59. [59]
    The applicant submits that in circumstances where the illegality in obtaining the evidence was by mistake, the consideration of whether the cogency of the evidence was affected will be more significant.^[27]
60. [60]
    However, the applicant did not submit that the cogency of the evidence from the May search was affected by the illegal January search.

61. [61]
    In my view, the illegal January search has no bearing on the cogency of the evidence obtained in the May search.

Ease of compliance

62. [62]
    The deliberate ‘cutting of corners’ in procuring evidence and the fact it would have been relatively easy to comply with the law will tend against the admission of the evidence.^[28]
63. [63]
    In this case it is not apt to consider the ease with which Senior Constable Murphy could have complied with the law. I am satisfied that he did comply with the PPRA in obtaining and executing the May search warrant.
64. [64]
    Justice Davis made no express finding about this factor in his Honour’s ruling on the application to exclude the evidence from the January search. That was no doubt because the circumstances relevant to that application did not involve the obtaining of evidence by any illegality which could have been cured or avoided if police had followed the law. Rather, it involved a search that was wholly unlawful because the searching officer did not hold, and could not have held, the requisite reasonable suspicion.

Legislative intention

65. [65]
    The legislation narrowly prescribes the conditions necessary to obtain a search warrant, which suggests that any deviation would favour exclusion.^[29] As Davis J observed in his ruling on the January search:

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.

66. [66]
    There was obviously a failure by police to comply with ss 31 and 32 of the PPRA when they searched the applicant’s vehicle without a warrant during the January search.
67. [67]
    However, this consideration is not relevant to the May search as there was no failure to comply with s 150 of the PPRA.

Whether the behaviour is condoned

68. [68]
    There is no evidence to suggest that the illegal conduct in January was supported or encouraged by those in higher authority. Moreover, this factor is not applicable to the May search. The illegal nature of the January search was not known to Senior Constable Murphy at the time he applied for or executed the May search warrant. There is also no evidence it was known to any senior police at the time.

Distinction between January and May searches of premises

69. [69]
    Justice Davis decided to exclude the evidence obtained from the January search of the applicant’s vehicle and person and the subsequent derivative search of his premises. His Honour exercised his discretion in favour of excluding all the evidence from the three searches finding that:

…the public interest in the protection of members of the public from unlawful and unfair treatment outweighs the public interest in prosecuting the applicant.^[30]

70. [70]
    His Honour’s decision to exclude the evidence obtained from the subsequent search of the applicant’s premises on 8 January 2020, under a warrant based solely on the preceding illegal vehicle search earlier that day, is distinguishable from the current circumstances.
71. [71]
    Although I accept that the Bunning v Cross discretion to exclude evidence may be enlivened even where there is no strict causal link between the illegal conduct and the evidence obtained, the extent of any causal nexus between the matters does in my view nevertheless remain a very relevant consideration in the present case.
72. [72]
    Unlike with the issue of the January search warrant, there is a significant separation between the illegal vehicle search and the May search warrant. The January and May searches are not connected in time or place and are different events. The events in January on the other hand can be seen to follow sequentially with a much more obvious link in causation. The items found during the search of the applicant’s vehicle led directly to the search of his residence. Although it is not made clear in Davis J’s judgment, it seems that the same police officer who conducted the illegal search of the applicant’s vehicle must have been involved in obtaining, or causing to be obtained, a search warrant for the applicant’s residence, based upon the items located in the vehicle.
73. [73]
    In the present case, the search warrant was not obtained solely on the basis of information obtained as a result of an illegal search. There was other cogent and compelling information contained in the search warrant application, unrelated to the January search.
74. [74]
    It is of some significance that the information derived from the January search that was relied upon by Senior Constable Murphy to apply for the May search warrant was not information about the illegal search itself or the evidence that had been found. Rather, it was restricted to the information that the applicant had been charged with drug offences and was on bail. When cross-examined about the matter, Senior Constable Murphy agreed that information by itself would not have been enough for him to apply for a warrant. However, he disagreed that this information was the primary consideration that led him to conclude there were reasonable grounds to obtain a search warrant. His evidence was that it was all three of the stated grounds in the application taken together that caused him to form that view. I accept the evidence given by Senior Constable Murphy.

Conclusion

75. [75]
    The argument for excluding the evidence from the execution of the May search is on a derivative basis, as one of the grounds for obtaining the May search warrant arose as a result of an illegal search.
76. [76]
    I am prepared to accept that the Bunning v Cross^[31] discretion may apply in circumstances where there is a sufficiently close connection between the illegal January search and the May search. However, the derivative basis for excluding the evidence from the May search does not mean that it is tainted by the same degree of illegality involved in the January search.

77. [77]
    Weighing up the relevant public policy considerations, I am of the opinion that the public interest in prosecuting the applicant outweighs the public interest in protecting the applicant from any unfairness as a result of the reliance on the antecedent illegality involved in the January search.
78. [78]
    In my view, the evidence ought not to be excluded and I decline to do so.

Orders

79. [79]
    The application to exclude the evidence obtained from the May search is dismissed.