Queensland Judgments
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R v Swayn

Unreported Citation:

[2021] QSC 116

EDITOR'S NOTE

The applicant sought an order excluding evidence obtained as a consequence of a search of a vehicle. The applicant contended that the search was unlawful as, at the time of the search, he had been removed from the vehicle and arrested, and as a result, had ceased to be detained for the purposes of s 31 PPRA as an “occupant” of the vehicle. In dismissing the application, Justice Burns clarified that as soon as the decision to detain the applicant and the vehicle had been made there was a power to search the vehicle and the exercise of that power did not depend on whether the applicant was detained or not.

Burns J

26 May 2021

The application

The applicant was charged on indictment with a drug trafficking offence and related offences, arising out of physical evidence and admissions obtained by police in consequence of a search of a vehicle driven by the applicant. [1]. A ruling was sought on behalf of the applicant that the physical evidence and admissions be excluded from his trial. [2].

At the time of the search of the vehicle, the applicant had been pulled from his vehicle, placed under arrest and handcuffed for obstructing police. [15].

It was submitted that, once the applicant had been removed from the vehicle and placed under arrest, he was no longer detained for the purposes of s 31 PPRA. That was because, it was contended, the applicant was “unable to re-occupy the vehicle” and therefore “could no longer be an occupant”. [20].

Counsel for the applicant made further submissions that, once the applicant had been placed under arrest, the police ought to have, instead, sought a warrant to search the vehicle pursuant to s 150 PPRA. [20]. Reliance was also placed on s 393(1)(a) PPRA which stipulates the duty of a police officer who arrests a person without warrant to, “as soon as reasonably practicable, take the person before a court to be dealt with according to law”. [24].

Consideration

Justice Burns held that the applicant’s argument as to the operation of s 31 “cannot be accepted” being based on “several misconceptions”. [20].

Those misconceptions were dispelled as follows.

First, his Honour clarified that, as soon as the preconditions for s 31 PPRA were satisfied, there was a power to search the vehicle. Once conferred, the focus of the power was “solely on the vehicle and not the applicant”. It followed that, “regardless of whether the applicant’s detention had come to an end”, what later occurred between the police and the applicant, “could not affect the continuing existence of the power”. [21].

Second, his Honour noted that case law on “the relevance of occupancy of a vehicle by a person to the existence of the power conferred”, did not “have any bearing on the outcome of this case”. In the circumstances, there could be no doubt that at the time the police officer formed his reasonable suspicion, the applicant was an occupant – being in the driver’s seat. [22].

Third, his Honour rejected the proposition that “a person who, after being detained is placed under arrest, is no longer detained”. His Honour agreed with Bowskill J’s observation in R v Kairouz [2017] QSC 270, [27] that, a “person may be detained without being arrested; but a person who is arrested is also, in a practical sense, [still] detained”. [23].

As to the effect of s 393(1)(a) PPRA, his Honour noted that the obligation upon police officers to take an arrested person before a court ‘as soon as reasonably practicable’ is not an obligation to do so immediately, or, “in every case, to abruptly cease doing everything then being carried out as part of a lawful investigation in favour of transporting the person to the watchhouse for processing”. [24]. In any event, even if the applicant’s detention later became unlawful, that circumstance could not affect the existence of the search power, which was conferred at an earlier time. [23], [24].

Disposition

Having decided that the power to search the vehicle existed, Burns J turned to the applicants’ arguments on the police’s reasonable suspicion ([25]–[28]), and the exercise of the discretion ([29]–[32]).

Ultimately, his Honour resolved both issues in favour of the Crown. The application was dismissed. [33].

Z Brereton of Counsel

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