R v Swayn

Case [2021] QSC 116

SUPREME COURT OF QUEENSLAND

CITATION:

R v Swayn [2021] QSC 116

PARTIES:

THE QUEEN

(respondent)

v
JAK QUINN SWAYN

(applicant)

FILE NO/S:

Indictment 338 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application filed on 13 April 2021

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 May 2021

DELIVERED AT:

Brisbane

HEARING DATE:

17 May 2021; further written submissions on behalf of the applicant dated 24 May 2021; further written submissions on behalf of the respondent dated 25 May 2021

JUDGE:

Burns J

RULING:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – SEARCH AND SEIZURE – where the applicant was charged on indictment with trafficking in dangerous drugs and associated offences – where a vehicle the applicant was driving was searched pursuant to ss 31 and 32 of the Police Powers and Responsibilities Act 2000 (Qld) – where the applicant asserts that the search was unlawful and seeks an order that the evidence obtained as a result of the search as well as various statements made by him in connection with the search be excluded from evidence at his trial – whether the police had a reasonable suspicion that there may be a dangerous drug in the vehicle – whether the search was unlawful

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – where the applicant is charged on indictment with trafficking in dangerous drugs and associated offences – where a vehicle the applicant was driving was searched pursuant to ss 31 and 32 of the Police Powers and Responsibilities Act 2000 (Qld) – where the applicant asserts that the search was unlawful and seeks an order that the evidence obtained as a result of the search as well as various statements made by him in connection with the search be excluded from evidence at his trial – whether, if such evidence was unlawfully obtained, it should be excluded in the exercise of the court’s discretion

Criminal Code Act 1899 (Qld), s 590AA

Police Powers and Responsibilities Act 2000 (Qld), s 5, s 7, s 31, s 32, s 150, s 393

Bunning v Cross (1978) 141 CLR 54, followed
R v Barbaro [2015] QSC 346, cited
R v Ireland (1970) 126 CLR 321, cited
R v Kairouz [2017] QSC 270, followed
R v Keen [2016] 2 Qd R 1, cited
R v Kovacevic [2020] QSC 399, followed
R v Milos [2014] QCA 314, cited
R v Pohl [2014] QSC 173, cited
R v Pollard (1992) 176 CLR 177, cited
R v Versac (2013) 227 A Crim R 569, cited
State of New South Wales v Robinson (2019) 266 CLR 619, cited
Williams v The Queen (1986) 161 278, cited

COUNSEL:

P Feeney for the applicant

S Dickson for the respondent

SOLICITORS:

Michael Cooper for the applicant
Office of the Director of Public Prosecutions (Qld) for the respondent

  1. The applicant is charged on indictment with one count of trafficking in…

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R v Swayn [2021] QSC 116
Case
[2021] QSC 116
Decision Date

CaseChat Overview and Summary

The case of R v Swayn concerns an application by the applicant, who was charged with trafficking in dangerous drugs and associated offences, to exclude evidence obtained during a search of a vehicle he was driving and statements made by him in connection with the search. The applicant argued that the search was unlawful under sections 31 and 32 of the Police Powers and Responsibilities Act 2000 (Qld). The Crown opposed the application, contending that the police had both the power and sufficient grounds to conduct the search. The court was required to decide whether the police had a reasonable suspicion that there may be a dangerous drug in the vehicle and whether the search was lawful. Additionally, if the court found the search to be unlawful, it had to determine whether the evidence should be excluded in the exercise of its discretion.

The court considered the circumstances surrounding the search and the observations made by Senior Constable Byrnes, who noticed the applicant's bloodshot eyes, dilated pupils, and nervous demeanour, which led to a reasonable suspicion that the applicant may have been under the influence of drugs. The court found that the police had a reasonable suspicion that there may be a dangerous drug in the vehicle, thus justifying the search. However, the court also considered whether, if the search was unlawful, the evidence obtained should be excluded. Despite finding that the search was lawful, the court concluded that even if the search was unlawful, it would exercise its discretion against exclusion, given the circumstances of the case.

The court dismissed the application, finding that the evidence obtained during the search would not be excluded. The court acknowledged that the applicant's behaviour and appearance were consistent with drug use, which justified the police's reasonable suspicion and subsequent search. The court's decision was based on the balance of probabilities that the police had sufficient grounds to conduct the search and the exercise of judicial discretion in not excluding the evidence obtained.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The application was opposed by the Crown. It was argued that there was both power and sufficient grounds to conduct the search. Furthermore, it was contended that even if the court was to find that the search was unlawful, the challenged evidence should nevertheless be admitted in the exercise of the court’s discretion.The evidence The application falls to be determined on an agreed body of evidence comprising written statements of the arresting officers (Senior Constables Byrnes and Geraghty), body worn camera footage of the engagement between police and the applicant, and the oral evidence of SC Byrnes. In addition, the court was asked to proceed on the basis that the evidence in the proposed Crown case, if accepted, supports the various allegations set forth in a draft Statement of Facts prepared by the Crown. According to the evidence adduced at the hearing, at approximately 11.15 pm on 31 May 2020, SC Byrnes and SC Geraghty were in a marked police vehicle conducting patrols in an area of Lutwyche that is known for illicit drug activity when their attention was drawn to a sedan being driven by the applicant. SC Byrnes decided to intercept the vehicle for the purposes of a roadside breath test and licence check. Before that occurred however, SC Geraghty ran a check on the vehicle’s registration status and learned that it had expired five days previously. The applicant soon after drove the vehicle into a “communal car park” underneath a block of residential units and parked in one of the spaces. SC Byrnes and SC Geraghty followed in their vehicle and parked a short distance away before turning on the emergency lights fitted to their vehicle. SC Byrnes activated his body-worn camera. Both officers approached the applicant’s vehicle. The engine was still running. SC Byrnes gestured to the applicant to turn the engine off and he did so before alighting from the vehicle and locking it. He was wearing a black hooded sweater with the hood pulled up over his head. SC Byrnes told the applicant to “jump back in the car”. The applicant did not immediately comply with that direction but after SC Byrnes repeated that direction and said that he wanted to conduct a licence check and roadside breath test, the applicant unlocked the driver’s side door and re-entered the vehicle. SC Byrnes remained in close proximity to the applicant because of what he perceived to be a reluctance on the part of the applicant to get back into his vehicle. SC Byrnes also observed that, as the applicant sat in the driver’s seat, he attempted to close the door in a “quick, deliberate, forceful manner”. SC Byrnes reached out and took hold of the door frame to prevent that occurring. SC Byrnes then told the applicant that he was “detained for the purpose of a licence check and roadside breath test”. The applicant was then directed to produce his driver’s licence, which he did. SC Byrnes asked a series of formal questions, all of which were answered by the applicant. According to SC Byrnes’ written statement, he then formed the opinion that the applicant was affected by “something”, either alcohol or drugs. The applicant’s eyes were bloodshot with wide, dilated pupils, he had a “strung out tired ruddy look”, slow speech and appeared to be “very nervous and anxious” when retrieving his driver’s licence before handing it over. Further, when giving evidence on the hearing of the application, he said this:“I initially observed that [the applicant] appeared to have a clammy, ruddy complexion, strung out type … he appeared to be pale, tired, like he’d been awake for some time, sort of an appearance that, to me, was consistent with someone who may have used a dangerous drug.Also, it appeared that he had bloodshot eyes, and his pupils, in my opinion, appeared to be quite wide and quite dilated. I also observed that when I spoke with him, sometimes his answers weren’t – or he didn’t reply quite clearly and he didn’t appear to be able to listen to me and respond to me quick enough, and I formed a reasonable suspicion that maybe he’s under the influence of something, be it … alcohol or drug.I also noticed, too, that on his forehead, he had what appeared to be some perspiration, which, in my opinion, given that time of night, that location and time of year, was also consistent with what I know to be drug use.”

Decision

Reasons for decision

It follows that, even if I concluded that the search was unlawful, I would exercise the discretion against exclusion.Conclusion For these reasons, the application must be dismissed.

Ratio Decidendi

Legal Principle Established

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