Byrne v Kremmer

[1994] QCA 374

IN THE COURT OF APPEAL [1994] QCA 374

SUPREME COURT OF QUEENSLAND

C.A. No. 275 of 1994

Brisbane

Before McPherson J.A.
Davies J.A.
Mackenzie J.

[Byrne v. Kremmer]

BETWEEN

PAULA ANNE BYRNE

v.

TARA JANE KREMMER

(Appellant)

McPherson J.A.
Davies J.A.

Mackenzie J.

Judgment delivered 22/09/94

Reasons for judgment by the Court

APPEAL DISMISSED.

CATCHWORDS: CRIMINAL LAW - DRUGS - Detention & Search - Possession of cannabis - Appellant in vehicle with known drug dealer - Search of vehicle and persons - Cannabis seeds and cigarettes found in vehicle - Whether detention and search authorised by s.15 Drugs Misuse Act - Reasonable suspicion discussed - Whether police evidence of admissions by accused corroborated.

Counsel:J. Jerrard Q.C., for the appellant

B. Butler for the respondent

Solicitors:  Legal Aid Office for the appellant

Director of Prosecutions for the respondent

Hearing Date:14 September 1994

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the Twenty Second day of September 1994

This is an appeal against conviction in the magistrates court on a charge of possessing cannabis. The appellant was one of three individuals who were observed in a car parked at the roadside at Kuranda. In addition to the appellant, there was a man named Barnes and another named Coles, who was known to the police as a drug dealer. On seeing him, police constable

Thompson said something to his companion police constable Byrne.

They were both members of the Drug Squad. Something in the way Coles acted - he was said to have fidgeted with his jacket - attracted attention, and he and police constable Byrne went over to the car. Byrne saw the appellant reach down as if to place

something on the floor between the two front seats. Meanwhile Thompson spoke to Barnes and Coles. He took a cigarette from a

packet Barnes was holding, and then announced he was detaining

everyone under the provisions of the Drugs Misuse Act 1986.

Byrne asked the appellant to stand beside the door of the vehicle and looked between the two front seats. She found a cigarette there, which on later analysis proved to contain cannabis. According to Byrne's evidence in the magistrates court, the appellant admitted to having put the cigarette there.

She said she found another cigarette also containing cannabis

in a Long Beach packet which the appellant was holding and which

the applicant said she owned. She then searched a handbag held

by the appellant, and found three cannabis seeds. According to

Byrne, the appellant said she owned them.

On appeal two grounds were argued before us by Mr Jerrard

Q.C. for the appellant. One is that the evidence of police

constable Byrne with respect to the admissions made by the appellant was not corroborated, and that in consequence the magistrate ought not to have acted on her evidence. However, the two cigarettes and the seeds tended to confirm her evidence

in a material respect, at least when taken in conjunction with the admission made by the appellant to Byrne that she owned the

Long Beach cigarette packet. In giving evidence at the hearing,

the appellant denied making any admissions, but she agreed that

the Long Beach cigarettes were hers. She said she had bought

the packet of cigarettes on the previous day, and suggested that

the cannabis might have been put in the packet by someone else.

The magistrate rejected the appellant's evidence.

In this state of things the magistrate was justified in accepting and acting upon the evidence of police constable Byrne concerning what was said to her by the appellant at the car. It was nevertheless submitted on appeal that the cigarettes and seeds, and presumably also the admissions, should not have been received in evidence by the magistrates court because they were the result of a detention and search which were not authorised

under s.15 of the Drugs Misuse Act 1986. The evidence was, it was submitted, therefore obtained illegally and, as such, ought, in the proper exercise of the judicial discretion recognised in Bunning v. Cross (1978) 141 C.L.R. 54, to have been excluded

having regard to the principles laid down in that case.

The way in which the magistrate approached the matter in the court below meant that he never arrived at the point where he had to exercise that discretion. He held that there was

evidence sufficient to enliven the reasonable suspicion of constable Thompson, so as to enable him to exercise the power conferred on him as a police officer by s.15(1) of the Act to detain and search the occupants of the car. On appeal it was

argued that this conclusion was not well founded because Thompson himself did not give evidence at the hearing; or

alternatively that the magistrate in reaching his conclusion on the reasonableness of the suspicion had taken account of some

matters that were impermissible or irrelevant.

A variety of other questions tended to be thrown up in the course of these submissions on appeal. One was whether the police officers had been acting in the exercise of their powers

under s.15, or under s.14 of the Act, or under a combination of both of those sections. On entertaining a reasonable suspicion

that there is evidence of an offence s.14(1) confers on a police officer power to detain and search a vehicle. Under s.15 the power is to detain and search a person. Another question

mentioned in argument was the onus of proof; that is, whether it is for the prosecution to prove that the search was lawful; or

for the defence to show that it was unlawful : cf. R. v. King

[1970] S.A.S.R. 503, 505. Here the position may have been that,

through not calling Thompson to give evidence, there was at most

an absence of sufficient evidence to show the legality of the detention and search, rather than the presence of evidence

suggesting it was unlawful.

In the end, however, we are persuaded that, whatever conclusion might be reached on these matters, the case is one where the discretion to exclude the impugned evidence could have been and should be exercised in only one way.

It is not altogether easy to identify precisely what it was

that is said to have made the detention and search unlawful. It

can only be that, although the two police officers suspected that there was evidence of the commission of an offence, there

was, in what they knew and saw, objectively speaking not enough to justify their suspicions. But the range of circumstances that may be taken into account to arouse reasonable suspicion is

very extensive, and includes matters that would not be admissible as evidence in proceedings at law. See Hussien v. Chong Fook Kam [1970] A.C. 942, 948-949; and, as regards prior

convictions, Price v. Beck, ex parte Price [1957] St.R.Qd. 74, 86, 89. The supposed illegality of the detention and search in

this case therefore turned at most on a difference between what

the police officers actually suspected and what they were

justified in suspecting. In circumstances like these, such a

distinction is a very fine one and would not attract the

exercise of the discretion to exclude the evidence obtained, the more so where, as here, their suspicions were vindicated by events. The detention and search did, as they had suspected, turn up evidence of commission of an offence or offences under

the Act.

In addition, although the offence detected was comparatively trivial, the illegality if any was correspondingly slight. As regards police constable Byrne, it involved no more than looking in the car to see what had been placed between the

seats, and removing and inspecting the cigarette she found there; taking the Long Beach packet from the appellant's hand

and examining its contents; and searching the appellant's handbag to find the seeds. No search was conducted of the

appellant's person and no force was used by either police

officer.

In these circumstances we consider that, in the exercise of

the discretion recognised in Bunning v. Cross, the disputed

evidence was admissible and that the magistrate would and should have exercised his discretion to admit it, had it been necessary

for him to do so. It follows that the appeal must be dismissed.