R v Davis

Case [2023] QSC 112

SUPREME COURT OF QUEENSLAND

CITATION:

R v Davis [2023] QSC 112

PARTIES:

THE KING

(respondent)

v
SHELDON JOHN DAVIS

(applicant)

FILE NO:

Indictment No 1288 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application for pre-trial ruling

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

28 April 2023

JUDGE:

Davis J

ORDER:

The following evidence is excluded from the trial of the applicant:

1.   Evidence of things found during the search of the applicant’s car on 13 April 2019 including the applicant’s mobile telephone.

2.   Evidence of the conversation between the applicant and police during the search of the applicant’s car on 13 April 2019.

3.   Evidence derived from the examination of the applicant’s mobile telephone.

4.   The recorded interviews between the applicant and police on each of 13 April 2019 and 17 June 2019.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – ILLEGALLY OBTAINED EVIDENCE – GENERALLY – where s 60 of the Police Powers and Responsibilities Act 2000 (PPRA) gives police powers to intercept motor vehicles – where the power is given for the purpose of enforcing the traffic laws – where s 31 of the PPRA gives police powers to intercept motor vehicles – where the power under s 31 is conditioned upon police holding a reasonable suspicion that dangerous drugs are in the motor vehicle – where s 31 of the PPRA also gives police powers to search a motor vehicle upon reasonable suspicion that drugs are in the motor vehicle – where police intercepted the applicant’s motor vehicle – where they relied upon s 60 – where they were not doing so to enforce traffic laws but to investigate drug offences – where the police did not form the requisite reasonable suspicion before interception – whether the interception was unlawful – where the police searched the applicant’s motor vehicle in purported exercise of powers under s 31 of the PPRA – where police located drugs – where police then interviewed the applicant – where police made other investigations – whether the police officers’ suspicion was held on reasonable grounds – whether the search was unlawful – whether evidence found in the search and subsequent investigations ought to be excluded in exercise of discretion

Drugs Misuse Act 1986, s 5, s 6, s 9
Evidence Act 1977, s 53
Police Powers and Responsibilities Act 2000, s 3, s 31, s 32, s 60
Road Traffic Act 1961 (SA), s 42
Transport Operations (Road Use Management) Act 1995, s 78

Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37, cited
Australian Securities and Investments Commission v Rich (2005) 220 ALR 324, cited
Bunning v Cross (1978) 141 CLR 54, followed
Coco v The Queen (1994) 179 CLR 427, cited
Deputy Commissioner of Taxation v De Vonk (1995) 61 FCR 564, followed
Director of Public Prosecutions v Kaba (2014) 44 VR 526, cited
Dupas v R (2012) 40 VR 182, cited
Garrow…

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Details
AGLC
R v Davis [2023] QSC 112
Case
[2023] QSC 112
Decision Date

CaseChat Overview and Summary

In the case of R v Davis, the applicant, the driver of a motor vehicle, sought the exclusion of evidence obtained during a police interception and subsequent search of his vehicle. The evidence in question was obtained under the powers given by the Police Powers and Responsibilities Act 2000 (PPRA) but outside the parameters intended by the Act. The main issue before the court was whether the police interception and search were lawful under the circumstances, and if not, whether the evidence obtained should be excluded under the discretion identified in R v Ireland and Bunning v Cross.

The court examined whether the police officers had a reasonable suspicion, as required by s 31 of the PPRA, that dangerous drugs were present in the vehicle before they intercepted and searched it. The police claimed they were enforcing traffic laws under s 60 of the PPRA, but the court found that their real purpose was to investigate drug offences. The court found that the officers did not form the requisite reasonable suspicion before the interception and search, making the actions unlawful. Consequently, the court held that the evidence obtained during the search and subsequent investigations should be excluded.

The court ruled that the evidence of things found during the search of the applicant’s car, the conversation between the applicant and police during the search, evidence derived from the examination of the applicant’s mobile telephone, and the recorded interviews between the applicant and police on 13 April 2019 and 17 June 2019, were all excluded from the trial of the applicant. This decision underscores the importance of police adhering to the legal parameters set out in the PPRA when intercepting and searching vehicles.

Orders

Orders of the court

The following evidence is excluded from the trial of the applicant:

1. Evidence of things found during the search of the applicant’s car on 13 April 2019 including the applicant’s mobile telephone.

2. Evidence of the conversation between the applicant and police during the search of the applicant’s car on 13 April 2019.

3. Evidence derived from the examination of the applicant’s mobile telephone.

4. The recorded interviews between the applicant and police on each of 13 April 2019 and 17 June 2019.

Background

Background to the litigation

The applicant seeks the exclusion of that evidence in exercise of the discretion identified in R v Ireland[10] and explained in Bunning v Cross[11] (the Bunning v Cross discretion).[10](1970) 126 CLR 321.[11](1978) 141 CLR 54.Background Constable Michael Carr and Senior Constable Brent Schulz were, in April 2019, attached to the Moreton District Tactical Crime Squad. They were on duty together on 13 April 2019 patrolling in an unmarked police car. For reasons later explained,[12] the two police officers were patrolling Boundary Road and Narangba Road, Dakabin.[13][12]See paragraphs [30] and [31] of these reasons.[13]Which is near Narangba. A black Holden Senator motor car came to the officers’ attention. They intercepted the car on Narangba Road, Dakabin. The applicant was the driver of the car and Paul Daniel Langford was its only other passenger. In order to intercept and stop the applicant’s car, the police purportedly relied upon s 60 of the Police Powers and Responsibilities Act 2000 (the PPRA). It provides, relevantly:“60 Stopping vehicles for prescribed purposes(1)A police officer may require the person in control of a vehicle, other than a train or a vehicle being pulled by an animal, to stop the vehicle for a prescribed purpose…(3)The prescribed purposes are as follows—(a) for enforcing a transport Act or the Heavy Vehicle National Law (Queensland);(b) to check whether the vehicle complies, or the person is complying, with a transport Act or the Heavy Vehicle National Law (Queensland);(c) for monitoring or enforcing a liquor provision;(d) for enforcing a contravention of law involving putting, dropping and leaving litter on a public place from a vehicle;(e) to conduct a breath test or saliva test;(f) to investigate the emission of excessive noise from—(i)a motor vehicle on a road or in a public place; or(ii)a motorbike being driven on a place other than a road;(g) to give a noise abatement direction to the person responsible for the emission of excessive noise from—(i)a motor vehicle on a road or in a public place; or(ii)a motorbike being driven on a place other than a road;(h) to impound or immobilise a motor vehicle under chapter 4;(i) for enforcing the Tobacco and Other Smoking Products Act 1998, section 26VC;(j) to give the person any of the following under the Peace and Good Behaviour Act 1982—(i)a public safety order;(ii)a restricted premises order;(iii)a fortification removal order;(k) to give a person, under section 53BAC, an official warning for consorting…” (statutory notes and examples omitted, emphasis added) Sections 60(3)(a) and (b) effectively identify the enforcement of all traffic laws as a purpose for which the power created by s 60(1) may be exercised. Drivers of vehicles must be licensed to drive on public roads.[14] A vehicle may be stopped by police pursuant to s 60 for the purpose of ascertaining whether the driver is licensed (a licence check).[15] This was said to be the purpose which justified the police officers directing the applicant to stop his car.[16][14]Transport Operations (Road Use Management) Act 1995, s 78.[15]Section 60(3)(b); whether the person intercepted is complying with the law requiring him to be licensed.[16]T 1-7.

Evidence

Evidence Before The Court

Constable Carr passed away on 4 April 2023. Senior Constable Schulz gave evidence before me. The case was conducted on the basis that:1.Constable Carr did in fact form a suspicion that there were dangerous drugs in the applicant’s car;2.Constable Carr purported to detain the occupants and search the car in exercise of powers vested by s 31;3.reliance by the Crown is made on Senior Constable Schulz’s evidence to establish grounds that are reasonable in the circumstances to support Constable Carr’s suspicion.The evidence Senior Constable Schulz gave evidence. Although I do not accept his assertions that the applicant’s vehicle was intercepted in order to investigate compliance with traffic laws, I found him to be an honest witness who was motivated to tell the truth and to fulfil his oath as a witness. His miscategorisation of his actions as traffic enforcement was no doubt a reflection of what he had been instructed by more senior police.[29][29]See paragraphs [34] and [35] of these reasons. In examination-in-chief, Senior Constable Schulz said that he and Constable Carr were on duty patrolling the Narangba area. He gave evidence:“And what was the nature of your duty that night?---During that shift, we were patrolling in an unmarked police vehicle and we would just, sort of, target high traffic areas or previously known drug offences - or drug addresses of interest.Now, you’ve said ‘high traffic areas’?---Yeah.What do you mean by that?---Usually when - if previous intercepts - or if we know a drug address is nearby, we, sort of, identify pathways that are commonly used by drug offenders.”[30] (emphasis added)And:“Right, What were you looking for?---We were conducting patrols along the Narangba Road, Dakabin, which is a main thoroughfare for keeping off the highway from Petrie, being North Brisbane, up into Narangba, into Moreton district at that time. There’s a couple of drug addresses both - either off that address and you can commonly, sort of, identify - a lot of cars of interest, stolen cars or offenders utilise that to keep off the main highway.”[31][30]T 1-6, ll 35-43.[31]T 1-7, ll 3-8. The purpose of the patrol was explored by Mr Rutledge of counsel (for the applicant) in cross-examination:“All right. The first few questions I’m working off notes that were taken by the clerk working with the prosecutor when he had a telephone conversation with you, okay, and I’m assuming that they are accurate notes. Okay. That night your duties were:Proactive patrols targeting street-level drugs.That’s what you told the prosecutor; is that right?---Correct.Okay. And that was it; you were out looking for drugs. That’s fair enough?---Yes.Yeah. Okay. And the area that you had your car positioned in was a high-interest area for drug offenders; correct?---Correct.All right. And I think I picked up that it was positioned between a couple of what I’ll call drug houses, you know, houses connected with drug dealers; is that right?---Yes.”[32] (emphasis added)[32]T 1-12, ll 22-36.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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