R v Bossley

This decision followed an application under s 590 of the Criminal Code to exclude evidence of a search where the accused was charged with trafficking MDMA.  The accused was attending a music festival where he was spotted by police officers who considered that he appeared excited, talkative and hyperactive compared to others around him.  The accused was searched and found to be carrying a trafficable quantity of MDMA.  The issue for Dalton J was whether or not the evidence obtained from the search was admissible.  Under s 29 of the Police Powers and Responsibilities Act a search may be conducted without a warrant if the police “reasonably suspects” the relevant circumstances; in this case that the person was in possession of dangerous drugs.  Apparently, merely attending a “music festival” does not give rise to a prima facie inference that such is the case.  Therefore, her Honour considered what was comprehended by the expression “reasonably suspects” and identified it in the following terms (footnotes omitted):

“The term “reasonably suspects” is defined in Schedule 6 to the PPRA as meaning, “suspects on grounds that are reasonable in the circumstances”.  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.  That a young man is driving a smart car with some panel damage is not sufficient to give rise to a reasonable suspicion.”

Although her Honour found that there were no grounds for the “reasonable suspicion” under the PPRA her Honour considered that the accused had consented to the search and, in reaching that conclusion, consideration was given to the nature of the consent required.