R v Smith[2025] QSCPR 8

SUPREME COURT OF QUEENSLAND

1. [1]
   An indictment has been presented charging the applicant with a count that on 24 February 2024 he unlawfully possessed the dangerous drug methylamphetamine in a quantity in excess of 2.0 grams contrary to s 9(1) of the Drugs Misuse Act 1986.
2. [2]
   Pursuant to s 590AA(2)(e) of the Criminal Code (Qld) the applicant has applied for a ruling that evidence obtained by reason of the interception and search of the vehicle the applicant was driving and of his person be excluded from the prosecution case. The police did not have a warrant to search either the applicant or the vehicle.
3. [3]
   For the purposes of determining this application there is no dispute that on 24 February 2024 the police found the following objects upon searching the applicant and his vehicle.  A set of electronic scales was found in a bag attached to the applicant’s waist.  Four large clip-seal bags, each containing methylamphetamine, a clip-seal bag containing a wad of cash and a clip-seal bag containing numerous smaller clip-seal bags were found on the floor of the vehicle in front of the driver’s seat.  A Nokia mobile phone was found between the driver’s seat and the driver’s door.  At a later time the contents of the phone were able to be accessed.  It contained evidence of communications between the applicant and others about dangerous drugs. 
4. [4]
   The applicant contends that both the search of his person and of the vehicle were unlawful because: the police did not in fact have a suspicion that any of the prescribed circumstances for searching without a warrant existed; and, even if the police in fact had such a suspicion it was not reasonably held.  In the event the searches are held to be unlawful the applicant contends that the Court should exclude the evidence about what was found in the exercise of the public policy discretion.^[1]
5. [5]
   The respondent resisted the application.  The respondent contended there was a lawful basis for the searches and even if this was not established, the exercise of the public policy discretion would not result in the exclusion of the evidence of what was found.
6. [6]
   For the reasons which follow, I am satisfied that the relevant suspicion was held and that there were reasonable grounds for the suspicion.  Accordingly, the search of the vehicle and of the applicant was lawful.

Relevant legislative provisions

7. [7]
   A police search of a person without a warrant is provided for by sections 29 and 30 of the Police Powers and Responsibilities Act 2000.  A police search of a vehicle without a warrant is provided for by sections 31 and 32 of the Act.
8. [8]
   Section 29 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. …”

9. [9]
   Section 30 relevantly provides:

“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

3. …”

10. [10]
    Section 31 relevantly provides:

“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.

2. …”

11. [11]
    Section 32 relevantly provides:

“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—

1. …

2. …

3. may be an unlawful dangerous drug; or

4. … ”

12. [12]
    The expression “reasonably suspects” is defined in schedule 6 of the Act to mean, “suspects on grounds that are reasonable in the circumstances”.
13. [13]
    A police officer who suspects on grounds that are reasonable in the circumstances that a person has something that may be an unlawful dangerous drug and/or who suspects on grounds that are reasonable in the circumstances that there is something in a vehicle that may be an unlawful dangerous drug can stop, detain and search that person or vehicle, even though the police officer has no warrant to search either the person or the vehicle.
14. [14]
    In Queensland Bacon Pty Ltd v Rees, Kitto J said:^[2]

“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.”

15. [15]
    There must be a factual basis for a suspicion.^[3]  The prosecution bears the onus of proving on the balance of probabilities that there was a factual basis for a suspicion.^[4]  Whether there are reasonable grounds for a suspicion is not determined by a police officer’s assertion his or her suspicion was reasonable, rather what is called for is an objective assessment of whether there were then circumstances sufficient to render the suspicion reasonable. 
16. [16]
    Upon the hearing of the application the applicant’s counsel acknowledged that the real issue in the present case concerned the lawfulness of the search of the vehicle.  This was due to where the drugs the subject of the count were found.^[5]  As the decision to search was made by Plain Clothes Senior Constable Zuehlsdorff, the applicant’s counsel also acknowledged that this issue was to be resolved by considering what suspicion he held and whether there were reasonable grounds for it.^[6]

Relevant evidence

17. [17]
    The officers primarily involved in the search of the vehicle and the applicant were Plain Clothes Senior Constables Zuehlsdorff and Lansdown.  The parties were content for the police officers’ sworn statements to be regarded as their evidence in chief.  Their statements were annexed as exhibits to an affidavit read at the commencement of the hearing.
18. [18]
    Snr Const Zuehlsdorff was driving an unmarked police vehicle.  Snr Const Lansdown was in the front passenger seat of that vehicle.  The police vehicle had stopped at traffic lights on Anzac Avenue, Rothwell when the vehicle driven by the applicant stopped in the left hand lane beside the police vehicle.  Camera footage from Snr Const Lansdown’s body worn camera showed the applicant’s vehicle alongside the police vehicle for about 4 seconds before the applicant’s vehicle drove forwards after the traffic light turned green.
19. [19]
    In his statement Snr Const Zuehlsdorff said that when the vehicle came alongside the police vehicle he saw that the driver’s side window was down and that the driver had a dazed look about him as he was staring straight ahead and he was oblivious to the presence of Snr Const Zuehlsdorff and Snr Const Lansdown. Snr Const Zuehlsdorff followed the vehicle and he observed that it failed to stop at the next intersection despite the traffic light being red.  Snr Const Zuehlsdorff continued to follow the vehicle and saw that although it was travelling within the speed limit it drifted from side to side in its traffic lane.  Snr Const Zuehlsdorff stated that this confirmed his suspicion the driver was possibly under the influence of drugs or alcohol.
20. [20]
    He continued to follow the vehicle as it made various turns into other streets.  He lost sight of it as it approached an intersection with Old Gympie Road but saw tail lights similar to the vehicle he had been following several hundred metres ahead after he turned onto Old Gympie Road.  He lost sight of the vehicle again at a roundabout.
21. [21]
    Snr Const Zuehlsdorff stated that he recalled an address of interest to police that was near to the point where he had lost sight of the vehicle on the second occasion.  He recalled that the police possessed “several intelligence holdings in relation to the supply of methylamphetamine from that address”.  A little while later Snr Const Zuehlsdorff saw the vehicle parked across the street from the residence situated at number 14 in the street in Kallangur that the intelligence had been concerned with. He stopped the police vehicle nearby.  Shortly after, the vehicle drove towards and by where the police vehicle was parked.  Snr Const Zuehlsdorff then followed it along a number of roads.  He noticed that it was “travelling in the same manner as before”.  The vehicle stopped in the car park of some shops. 
22. [22]
    Snr Const Zuehlsdorff pulled his vehicle up behind it thereby blocking it in.  He activated his body worn camera.  He recognised the driver as the person he had seen alongside the police vehicle at Rothwell.  Snr Const Zuehlsdorff stated that, “I then confirmed my reasonable suspicion that there were drugs or evidence of drug use in the vehicle taking into account the driver’s manner of driving, the drivers indicia initially observed on Anzac Avenue Rothwell and the extensive intelligence relating to the supply of dangerous drugs that’s linked to 14 … Kallangur”.  The body worn camera footage recorded Snr Const Zuehlsdorff saying to the applicant that he was detained for his manner of driving and that he was detained for the purposes of a search.
23. [23]
    In cross-examination, Snr Const Zuehlsdorff acknowledged that he did not see the applicant’s eyes when the applicant’s vehicle was stopped alongside the police vehicle on Anzac Avenue, Rothwell.  He maintained that the applicant was staring.  His suspicion the applicant was under the influence of drugs or alcohol arose after he saw him drive through the red light and after his vehicle drifted within its lane.  He followed the applicant to see where he was going and he said that prior to seeing the vehicle across from number 14 he had no intention of searching the vehicle, he only intended to stop it for a licence check.  As they followed the vehicle, Snr Const Lansdown checked the vehicle’s registration number on a police iPad.  He agreed nothing of significance was conveyed to him by Snr Const Lansdown as a result of that. 
24. [24]
    Snr Const Zuehlsdorff said that after he saw the vehicle parked near number 14 the circumstances changed.  He said that some years earlier (possibly more than two, but unlikely to have been longer than three) he had been required to conduct observations of that address on one occasion.  However, he also knew that other police officers had “done jobs on that residence”.  From where he was parked adjacent to the address on 24 February 2024 he could not see whether the driver of the vehicle ever left it or returned to it or indeed if the driver had gone to any premises on the street.  As the vehicle left the street he conceded it was possible that for all he knew a different person was then driving the vehicle.  He followed the vehicle again in order to stop it to see who was driving it and to conduct a licence check.  He agreed he wanted to see who the driver was and have a conversation with him to see if there were any further “indicia”.  He said he decided he should search the vehicle just prior to the driver’s side door opening when the vehicle was stationary at the shops, which was when he saw that the driver was the same person he had seen on Anzac Avenue, who had driven in the manner he had observed and who had driven from the vicinity of the address mentioned.  Snr Const Zuehlsdorff rejected the suggestion he formed the intention to stop the vehicle and search it prior to losing sight of it. He rejected the suggestion that the association of the vehicle with the address had no role in his decision to search it and denied that he subsequently tried to justify the decision to search by relying upon the vehicle’s presence on the street across the road from the house associated with intelligence concerning drug supply.
25. [25]
    Snr Const Lansdown stated that when he looked over to the vehicle which stopped beside the police vehicle on Anzac Avenue, he considered the driver to be under the influence of drugs because he was “slumped”, appeared dazed/out of it and was making “involuntary mouth movements”.  The vehicle drove through the next intersection against the red light and was “all over the road”.  After seeing these things Snr Const Lansdown said he suspected the driver had possession of dangerous drugs.
26. [26]
    Snr Const Lansdown’s evidence in cross-examination included that he did not see the applicant’s eyes when the vehicle was stopped beside the police vehicle.  He said he could see that the applicant was “in a daze, in a stare”.  As to his evidence that the applicant was slumped, he said the applicant was leaning forwards a little bit.  He said that he suspected the driver had drugs in his vehicle after the vehicle went through the red light.  He formed a suspicion from the circumstance that he went through the red light and from what he had observed of the applicant’s demeanour when the vehicle was stopped at the previous intersection.  He agreed there was no attempt made to pull the vehicle over despite his suspicion.  He said having seen the swerving of the vehicle within its lane he thought that if they tried to intercept the vehicle the applicant might have evaded them or failed to stop, thereby increasing the risk to the safety of other road users.  He said this was a matter he would have discussed with Snr Const Zuehlsdorff.  He said upon searching for the vehicle’s number plate on his iPad, there was an “indication” that a few months prior to February 2024, the same vehicle had been involved in fuel drive-off offences or stealing petrol.  Although this did not contribute to his suspicion that there were dangerous drugs in the vehicle, he did tell Snr Const Zuehlsdorff about these entries in the iPad.  He conceded it was possible that the vehicle was being driven by a different person after it drove out of the street it had been stopped in. 

Parties’ submissions

27. [27]
    The prosecution submitted that the Court would be satisfied Snr Const Zuehlsdorff held a suspicion there were dangerous drugs in the vehicle and that there were reasonable grounds for the suspicion.  The prosecution identified the grounds as the observation of the applicant’s demeanour when his vehicle was stationary beside the police vehicle, his driving through a red light and drifting from side to side in his lane and the vehicle’s proximity to an address for which police intelligence was that the address had been a place from which drugs were supplied.
28. [28]
    The applicant submitted that the Court could not be satisfied any relevant suspicion was held prior to the announcement to the applicant that the police were going to search his vehicle.  This was because if such a suspicion had in fact been held, it would surely have been acted on prior to when the applicant stopped at the shops.  It was only when the applicant informed the police after the decision to search had been announced that his address was in fact number 14 that the police set about retrospectively constructing their suspicion from that. 
29. [29]
    If the Court did find a relevant suspicion was held then it was not objectively reasonable for the police to have reached that suspicion.  There had been no proper opportunity to draw any inference from the applicant’s demeanour.  His manner of driving over about 15 minutes was mostly unremarkable and to the extent anything could be suspected from the manner of driving it was possibly conducive to the formation of other suspicions, such as that the applicant was affected by liquor or prescription medication. Snr Const Zuehlsdorff’s evidence was unclear about why the address had any relevance to the suspicion and when the vehicle left from the vicinity of the address there was then the realistic possibility someone else was driving the vehicle.  Snr Const Zuehlsdorff’s failure to state to the applicant that the search was to be for dangerous drugs, coupled with his announcement that the applicant was detained for his manner of driving, illustrated that Snr Const Zuehlsdorff was aware that there was no reasonable basis for a search.

The search was lawful

30. [30]
    Snr Const Zuehlsdorff impressed me as an honest witness.  I am satisfied that when he announced to the applicant that his vehicle was detained, Snr Const Zuehlsdorff then held a suspicion that there were unlawful dangerous drugs in the vehicle or in the applicant’s possession.  Of particular significance to this conclusion is the fact, which is not in dispute, that Snr Const Zuehlsdorff immediately announced that a purpose for the detention was so that a search might be undertaken.  This contemporaneous utterance is supportive of his evidence that he had the suspicion.  His reference to the manner of driving as a reason for the applicant being detained does not cause me to doubt that he held the suspicion. 
31. [31]
    I also accept Snr Const Zuehlsdorff’s evidence that his suspicion concerned the presence of unlawful dangerous drugs in view of the time at which he formed the suspicion.  It was when he saw that the driver of the vehicle, which had left from the vicinity of number 14, was the same driver he had seen drive the vehicle to the vicinity of number 14.  The formation of the suspicion at that very late stage accorded with what could be expected in that a suspicion depended on not just a stop of some minutes adjacent to number 14 but also the driver being the driver seen to have exhibited behaviour suggestive of being affected by drugs.  Although the significance of the address depended entirely on Snr Const Zuehlsdorff’s evidence about prior intelligence reports I accept his evidence that those reports concerned the supply of methylamphetamine from that address. 
32. [32]
    Snr Const Zuehlsdorff’s evidence about the vehicle going through the red light and drifting in its lane was supported by the dashcam footage and his evidence about the period of time it stopped near number 14 was supported by the break in the dashcam footage between 7.28pm and 7.33pm.  The evidence was that when the ignition in the police vehicle was turned off the dashcam did not operate.  The time at which Snr Const Zuehlsdorff formed the relevant suspicion also explains why he had not attempted to detain the vehicle prior to when it stopped at the shops.
33. [33]
    Considered in combination the demeanour displayed by the applicant, his manner of driving, his brief stop adjacent to and then his departure from the vicinity of number 14, which in the relatively recent past was associated with methylamphetamine supply, furnished grounds for a reasonable suspicion that the vehicle had unlawful dangerous drugs.  Therefore, I am satisfied that the search of the vehicle without a warrant was lawful pursuant to s 31 of the Act.  It follows that I am also satisfied that the search of the applicant was lawful pursuant to s 29 of the Act.
34. [34]
    The information recorded in the iPad was not relevant to the formation of the requisite suspicion.  Therefore, the differing recollections about what Snr Const Zuehlsdorff was told concerning what it recorded do not cause me to doubt the honesty of his evidence about what suspicion he formed and why he formed it.
35. [35]
    Sensibly, no argument was advanced that the search of the vehicle was unlawful because Snr Const Zuehlsdorff stopped behind it to conduct a licence check.  Section 31(1) confers three powers, one of which is to search a vehicle. The powers are not only to be exercised cumulatively.^[7]  The present case is one where the driver stopped the vehicle of his own volition.  After the vehicle came to a stop I have found that Snr Const Zuehlsdorff came to discover a further fact which, considered in conjunction with the other facts, provided a basis for a reasonable suspicion that the vehicle may have contained something which was an unlawful dangerous drug, thus permitting police to search it without a warrant.
36. [36]
    The order of the Court is:

1. The application to exclude the evidence of what was found during a search of the applicant’s vehicle and of his person is refused.