R v Versac [2013] QSC 46

CRIMINAL LAW - EVIDENCE-JUDICAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - ILLEGALLY OBTAINED EVIDENCE - GENERALLY - where applicant charged with possession of a dangerous drug - where police officers conducted unlawful search of applicant's vehicle - whether action of police officers was reckless - whether discretion to exclude evidence should be exercised.

Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22, cited

DPP v Leonard [2001] NSWSC 797; (2001) 53 NSWLR 227; [2001]NSWSC 797, cited

DPP v Nicholls (2001) 123 A Crim R 66; [2001] NSWSC 523, cited

Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9, cited

Pollard v The Queen (1997) 176 CLR 177; [1992] HCA 69, cited

R v Christensen (2005)156 A Crim R 397; [2005] QSC 279, cited

R v Dalley (2002) 132 A Crim R 169; [2002] NSWCCA 284, cited

R v Day and Anor [2008] QSC 358, cited

R v Lobban (2000) 112 A Crim R 357; [2000] SASC 48, cited

R v McKeough [2003] NSWCCA 385, considered

R v Milos unreported, Boddice J, SC No 817 of 2011, 3 December 2012, cited

R v Versac [2011] QCA 318, cited

R v Williamson [2009] QSC 434, cited

Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66, cited

The Queen v Swaffield (1998) 192 CLR 159; [1998] HCA 1, cited

The Queen v Ireland (1970) 126 CLR 321; [1970] HCA 21, cited

Drugs Misuse Act 1986 (Qld)

Evidence Act 1995 (Cth) s 138

Police Powers and Responsibilities Act 2000 (Qld) ss 31, 32, 160, 161 and 162

Director of Public Prosecutions (Qld) for the respondent

[1] The applicant is charged on indictment with possession of heroin on 22 September 2009. The prosecution case depends on the discovery of the heroin in a parked car which was searched by police without a warrant.

[2] The applicant seeks the exclusion of the evidence obtained during the search on the ground that the search was unlawful and that the discretion to exclude such evidence should be exercised. The respondent initially argued in its written submissions that the search was lawful. However, following the evidence given before me, it conceded that the search was unlawful.

[3] The issue, then, is whether the discretion to exclude should be exercised.

The discretion to exclude unlawfully obtained evidence

[4] The discretion discussed in authorities such as Bunning v Cross[1] requires competing public interests to be weighed. One is "the desirable goal of bringing to conviction the wrongdoer."[2] Another is "the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law."[3]

[5] The discretion "is necessary to protect the processes of the courts of law in administering the criminal justice system."[4] This judicial integrity principle holds that courts should not admit the tainted fruits of unlawful conduct, lest the administration of justice be brought into disrepute.[5] The discretion also serves the policy of deterring unlawful conduct by those entrusted with powers of law enforcement.[6]

[6] Australian courts have recognised a number of relevant factors in the exercise of the public policy discretion to exclude evidence. Some factors support exclusion, whilst others support admission. The factors include:

(a) whether the unlawfulness was a deliberate or reckless disregard of the law, as distinct from a mere oversight or accidental non-compliance with the law;

(b) the cogency of the evidence and whether the nature of the illegality affects the cogency of the evidence so obtained;

(c) the importance of the evidence in the proceeding;

(f) whether such conduct is encouraged or tolerated by those in higher authority in the police force; and

(g) how easy it would have been to comply with the law.

[7] Although fairness is relevant to the public policy discretion, it is not its focus. Instead, considerations of public policy are engaged, and fall to be applied in the particular circumstances of the case. The weight given to competing factors depends on those circumstances. For example, the particular circumstances may deprive the principle of deterrence of much weight. The unlawful conduct may have been the subject of disciplinary procedures, counselling or other remedies which sanction wrongful conduct or deter its repetition. If this is not the case, exclusion of the evidence may be appropriate to both uphold the judicial integrity principle and to deter such conduct in the future. If such unlawful conduct is tolerated by those in higher authority, then the case for exclusion will be stronger.[7]

[8] The essential nature of the balancing exercise was stated by Barwick CJ in

"On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price."[8]

[9] On 22 September 2009 the applicant attended the Southport Magistrates Court where he was the defendant in a committal proceeding for the offence of dangerous operation of a motor vehicle. At the time he was on bail for the offence of heroin trafficking, and also was wanted by police in connection with another offence of dangerous operation of a motor vehicle.

[10] Detective Senior Constable Rachel Peek described the applicant in her evidence before me as a "highly functioning heroin addict." The applicant was known to detectives as a heroin user, and as someone who was prepared to be involved in high-speed police pursuits.

[11] On 22 September 2009 Detective Senior Constable Jason Ricardo[9] attended the Southport Magistrates Court in order to give evidence at the committal hearing. After giving evidence he observed the applicant in the precincts of the court and, based on his observations and knowledge of the applicant, suspected that the applicant may have been under the influence of heroin.

[12] Detective Peek attended the Southport Courthouse that day with the intention of locating the applicant in connection with a crime report about his dangerous operation of a motor vehicle.

[13] The applicant was committed for trial and left the court in the company of his then lawyer. He was approached by Peek and Ricardo and arrested. His solicitor told police that the applicant did not wish to be interviewed. The applicant was "walked" by Senior Constable Peek to the nearby Southport watchhouse.

Senior Constable Ricardo followed. In the course of the applicant being processed at the watchhouse a set of motor vehicle keys was taken by police. Peek says that she had a short conversation with the applicant about them. This conversation was not recorded electronically or in her notebook. She says that the applicant denied possessing a motor vehicle, and stated that a friend dropped him off at court. She found his responses evasive and suspected that he was lying. She believed that the vehicle which the keys would open contained illicit drugs. She took possession of the keys, and reported the substance of her conversation with the applicant to Senior Constable Ricardo.

[14] Senior Constable Peek's suspicion that the vehicle contained drugs was founded on the applicant's history, his demeanour at the watchhouse, his possession of the keys and his evasive answers. Senior Constable Ricardo had a similar suspicion.

[15] The applicant remained in custody at the watchhouse. A decision was made by Peek and Ricardo to try to locate the car. There was some urgency in doing so. It was possible that an associate of the applicant might have seen his arrest or otherwise learned of it and might seek to retrieve any drugs from the car. Accompanied by another officer, the detectives went to the streets and a carpark in the vicinity of the courthouse, and used the key to activate an electronic unlocking device as a means of locating the car. By this means they were able to locate a Victorian registered Hyundai hire car at around 1.35 to 1.40 pm. It was in a carpark in close proximity to the Southport Courthouse and watchhouse.

[16] Soon after the vehicle was located, it was searched without a warrant. A plastic bag was found in its centre console. It contained three clip seal bags containing an

off-white substance. Later analysis revealed it to have a total weight of 32.762 grams and to contain approximately 6.039 grams of heroin (about 18 per cent pure). The applicant's DNA was found in the car, as were other items including mail in his name.

[17] In addition, police located in the car a set of Ford car keys. These were seized by Senior Constable Ricardo as he suspected they may have been tainted or derived from the commission of a serious offence.

[18] Whilst the police considered that the applicant's car should be located as a matter of urgency, once it was located there were no circumstances of urgency necessitating an "emergent search" to prevent loss of evidence. In their evidence at the committal proceeding, and in their evidence before me, officers Peek and Ricardo disclaimed any suggestion that the search of the car was undertaken without a warrant because they reasonably suspected that "evidence may be concealed or destroyed" unless the vehicle was immediately searched.[10]

[19] After searching the vehicle and finding the heroin and the Ford keys, the officers returned to the watchhouse and asked the applicant about the drugs. He declined to be interviewed.

[20] Officers Peek and Ricardo were both experienced police officers. On 22 September 2009 they were formally under the supervision of Detective Sergeant Tuffley who was the Southport Team Leader of the Gold Coast Criminal Investigation Branch. However, Sergeant Tuffley (who now holds the rank of Acting Senior Sergeant) did not know of plans to arrest the applicant that day, and did not know about the search of the motor vehicle until after it had concluded.

[21] Sergeant Tuffley had been involved in the investigation of an aggravated burglary or "home invasion" in Margaret Street, Southport that occurred on 16 September 2009. Peek and Ricardo had not been involved in that investigation, and although it is possible that they knew something about the home invasion, they did not link the Ford keys to it.

[22] Some time on the afternoon on 22 September 2009 Peek and Ricardo, or at least one of them, spoke to Sergeant Tuffley about the Ford keys that had been located during the search of the Hyundai hire car. These keys were handed to Tuffley. He suspected that they were keys that had been taken from the house that was ransacked on 16 September 2009. The complainants in the home invasion matter had identified the applicant in a photoboard procedure and the applicant was charged with offences arising out of that incident.

[23] An indictment in relation to that matter is before the District Court at Southport, and a trial in that court was recently adjourned to await the outcome of this application. It is for a judge of the District Court, not me, to assess the significance of the discovery of the Ford keys in the applicant's possession on 22 September 2009 to the prospects of a successful prosecution of the home invasion offence. It seems, however, that the keys may be a potentially significant piece of circumstantial evidence, and it also seems that Sergeant Tuffley appreciated this fact on the afternoon of 22 September 2009. He considered it prudent to obtain a post-search approval order pursuant to s 161 of the Police Powers and Responsibilities Act 2000 (Qld) ("the Act"). He directed Peek to obtain such an order. There is no suggestion that Sergeant Tuffley thought that grounds did not exist to obtain such an order so as to make such a direction inappropriate. Senior Constable Ricardo was privy to Sergeant Tuffley's request to obtain a post-search approval order. Sergeant Tuffley's recollection is that he directed Senior Constable Peek to prepare an application for a post-search approval order for the evidence located inside the vehicle. Constable Peek did not consider that such a post-search warrant was needed. She thought that she had power to search a vehicle, such as the Hyundai, without a warrant if she reasonably suspected that there were unlawful dangerous drugs in it. She thought that Sergeant Tuffley was wrong if he believed that a

post-search approval order was needed in respect of the drugs.

[24] As matters transpired, it was Senior Constable Ricardo who made the application for a post-search approval order. He did so on 25 September 2009, in compliance with Sergeant Tuffley's direction to apply for such an order. He saw nothing wrong in Sergeant Tuffley's request in that regard. The application that Senior Constable Ricardo completed on 25 September 2009 recited that the relevant offence in respect of which the search had been carried out was an offence under the

Drugs Misuse Act 1986 (Qld). So as to engage one of the bases upon which a magistrate may make a post-search approval order under s 162 of the Act, the application which Ricardo completed stated:

"Detectives believe that if the search of the vehicle was not completed immediately evidence may have been lost or concealed as other persons observed the defendant being taken into custody."

It is hard to reconcile this statement with the evidence given by Ricardo and Peek before me. The police believed that the drugs might be taken away by one of the applicant's associates if the car was not quickly located. However, they did not believe that once the car was located by police it was likely that any drugs would be concealed or destroyed. In their evidence at the applicant's committal hearing, Peek and Ricardo did not claim that they had conducted an emergent search without a warrant pursuant to s 160 of the Act. Authority to conduct such a search would have required them to reasonably suspect that evidence may be concealed or destroyed unless the car was immediately searched. The officers clarified that they did not conduct an emergent search, and asserted that they were authorised to conduct a search of the car without a warrant.

[25] A Magistrate heard the application shortly before 2 pm on 25 September 2009. As appears from his order, he expressly declined to be satisfied that before the search was undertaken there was a reasonable likelihood that the evidence would be concealed or destroyed. Instead, he granted a post-search approval order on the basis that "having regard to the nature of the evidence found during the search it is in the public interest to make the order."[11] This order does not operate as a determination that the search was lawful. The lawfulness or otherwise of the search depends upon the search being authorised by law, not because, for example, a

post-search approval order is made in order to preserve seized evidence which, having regard to its nature, makes it in the public interest to make a post-search approval order.[12]

[26] A magistrate might make an order in such a case, despite having reached the conclusion that grounds to conduct an emergent search under s 160 did not exist but because, for example, a large quantity of drugs was found as a result of the search.[13]

[27] When a similar provision was first introduced in the 1997 Act, the following example was given of a post-search approval on the public interest ground:

"If a search was made as a result of a rape investigation and the magistrate is not satisfied that the police officer had a reasonable suspicion prior to entering the place or that the evidence might be destroyed, the magistrate may still make the order on the basis that it is in the public interest that a person responsible for an offence as serious as rape should face trial for the offence. Obviously, any evidence retained by virtue of the order may be excluded at the trial by the judge."[14]

[28] The post-search approval order in this case ordered that the things seized be retained.

[29] The facts which are particularly relevant to the discretion may be summarised as follows.

[30] Peek and Ricardo searched the vehicle in the belief that, having a reasonable suspicion that unlawful dangerous drugs were in it, they could search it without a warrant.

[31] They did not purport to exercise the power conferred by s 160 of the Act to conduct a search without a warrant in order to prevent loss of evidence.

[32] Neither officer had a concern that the brief delay that might be required to obtain a warrant once the car was located might jeopardise the seizure of any drugs that were inside it. They simply thought that they had authority to search the car without a warrant.

[33] A warrant could have been obtained reasonably quickly if either officer had sought one. Leaving aside the possibility of obtaining a warrant by telephone or from a suitably authorised Justice of the Peace, it was a relatively easy matter to prepare the necessary application and to seek a warrant from a magistrate at the nearby Southport Courthouse. The evidence is that there is an on-call magistrate and that magistrates sitting in court will make themselves available at around 2 pm to hear applications. This is what occurred on 25 September 2009. As Senior Constable Peek acknowledged in her evidence, whilst obtaining a warrant is never simple, it would not have been difficult to obtain one on 22 September 2009.

[34] Senior Constable Ricardo gave evidence to the effect that a magistrate would have been available to issue a warrant had one been sought after the car was located at about 1.40 pm on 22 September 2009. One or more police officers could have been left to guard the car whilst an application was made.

[35] The respective beliefs of officers Peek and Ricardo that they did not need a warrant in order to search the car that day were not based on a flawed interpretation of s 31 of the Act. They simply did not consider the terms of the section at the time they decided to search the car. Instead, each thought it sufficient to search the vehicle without a warrant if they reasonably suspected that illegal drugs were in it. Although affidavits recently sworn by them refer to s 31(1) of the Act, there is no satisfactory evidence, and I do not accept, that they considered the terms of that section before conducting the search. Instead, they operated on the basis of a working assumption that vehicles can be searched without a warrant if a police officer reasonably suspects that there are unlawful dangerous drugs in it.

[36] Even after the search was conducted, and after Sergeant Tuffley directed Senior Constable Peek to obtain a post-search approval order, she still subscribed to the belief that she was authorised to search the car without a warrant, and that such an application was unnecessary. Senior Constable Ricardo only applied for the

post-search approval order because Tuffley directed him to apply for one. He thought that he had the power to conduct the search that he did and that such an application was unnecessary.

[37] There is no evidence that, despite Tuffley's request and the applicant's subsequent challenge to the lawfulness of the search, that either Peek or Ricardo have altered their belief that an unoccupied car can be searched without a warrant in a carpark in circumstances in which the vehicle and its occupants have not been detained.

[38] The terms of their affidavits suggest that no-one in authority, either in the police force or in the prosecution authority, has challenged their assumption that a search without a warrant of a vehicle may be conducted simply if the police officer reasonably suspects that drugs are within it. Their evidence tends to suggest that their belief in this regard is shared by others in the police force. Such a belief may be widespread. However, the evidence is insufficient to conclude, as the applicant's counsel invited me to, that the practice of conducting unlawful searches of unoccupied vehicles is systemic.

The statutory conditions imposed by s 31(1) of the Act

(1) A police officer who reasonably suspects any of the prescribed circumstances for searching a vehicle without a warrant exist may, without warrant, do any of the following -

(b) detain a vehicle and the occupants of the vehicle;

(c) search a vehicle and anything in it for anything relevant to the circumstances for which the vehicle and its occupants are detained."

[40] Section 32 defines the "prescribed circumstances" and they relevantly include that there is something in the vehicle that "may be an unlawful dangerous drug." Section 31(1) contains three distinct powers if a police officer reasonably suspects any of the prescribed circumstances for searching a vehicle. They are a power to stop the vehicle, a power to detain the vehicle and its occupants and a power to search. The power to search a vehicle pursuant to s 31(1)(c) is not unconstrained. It is a power to search a vehicle and anything in it "for anything relevant to the circumstances for which the vehicle and its occupants are detained." It does not authorise a search without a warrant of a vehicle in circumstances in which the vehicle and its occupants have not been detained.

[41] In this matter, it is acknowledged by the respondent that the vehicle and its occupants were not detained. Counsel for the respondent did not press an earlier written submission that the fact the vehicle was not stopped or any occupants detained did not therefore make the search an illegal one.

[42] In the light of the concession that the search was unlawful, it is unnecessary to dwell on the issue of whether each officer had a reasonable suspicion that dangerous drugs were in the car. I am prepared to find that they did, and no submission was made to the contrary. Such a suspicion might reasonably have been based on the applicant's history, his demeanour, information that he had previously had drugs in vehicles when he was driving in a police pursuit, his possession of car keys and his evasive and untruthful answers when asked by Senior Constable Peek about the keys and how he came to the Courthouse that day.

[43] Whilst the existence of a reasonable suspicion that an unlawful dangerous drug is in a vehicle may permit a vehicle to be searched without a warrant in a case in which the vehicle and its occupants are detained, those circumstances did not exist in this case. The vehicle had not been detained. It was unoccupied in a carpark. The concession that the search was unlawful was properly, if belatedly, made.

Was there a reckless disregard of the law by the police?

[44] There is no suggestion that the unlawful search involved a deliberate disregard of the law. Instead, the applicant submits that it was reckless.

[45] Officers Peek and Ricardo each thought that they were entitled to search the vehicle without a warrant.

[46] The Evidence Act 1995 (Cth) and its counterparts in some other Australian jurisdictions contain provisions which reflect those that emerge from leading authorities such as Bunning v Cross.[15] One factor that a court may take into account under s 138(1) of the Act is whether the impropriety or contravention was "deliberate or reckless." The Act does not define "reckless." In DPP v Nicholls[16], Adams J defined reckless to mean "a serious disregard of the relevant procedures amounting to a deliberate undertaking of the risk that the rights of a suspect will be substantially prejudiced." In another case James J expressed the view that a police officer who "failed to give any thought to whether there was a risk of a search being illegal, in circumstances where, if any thought had been given, it would have been obvious that there was such a risk" would have been "reckless."[17]

[47] It has been observed that if "officers face situations where the constraints imposed by law are vague and their best estimation of the legal requirements turn out to be erroneous, they have not engaged in a deliberate or reckless disregard of the law."[18] The learned author cites as an example R v McKeough[19], being a case in which a detective was alleged to have had the erroneous view that he had the right to search a vehicle. The detective noticed that the applicant acted oddly whilst driving his car. The applicant's car was stopped by the police, and the detective noticed inside it a small crowbar and a pair of gloves. After asking the applicant some questions, the detective thought that the tools and gloves might be used as housebreaking implements and decided to search the car pursuant to s 357E of the Crimes Act 1900 (Cth). Drugs were found during the search. The trial judge concluded that there was no basis for the suspicion, required by s 357E and, accordingly, that the search of the car was unlawful. The evidence obtained was excluded, without any finding that the impropriety or contravention was deliberate or reckless.

[48] On appeal, the New South Wales Court of Criminal Appeal (by majority) concluded that the trial judge was in error in finding that the search of the vehicle was illegal. Additionally, and on the hypothesis that the search of the vehicle was illegal, Dunford J (with whom Spigelman CJ and Hidden J agreed on the issue of the proper exercise of the discretion) concluded that the trial judge was in error in excluding the evidence. One relevant factor was that the detective was of the view that he had the legal right to search, and the suggested impropriety or contravention was not deliberate or reckless, particularly in light of the fact that the police had good reason to stop the car in the first place.[20]

[49] The Court in that case was not concerned with a mistaken view by the detective about the terms of the legal requirements of the search. The issue which divided the Court of Criminal Appeal was whether the facts created a basis for a reasonable suspicion that the vehicle contained instruments that may have been used in housebreaking. Spigelman CJ, in dissent, concluded that they did not. The majority, assuming for the purpose of argument that the search was unlawful, did not regard the assumed erroneous judgment of the detective to be of a character which made any unlawful search deliberate or reckless. The reasons of Dunford J on the issue of unlawfulness explain why the detective had a reasonable suspicion that the vehicle contained instruments that may have been used in housebreaking. The evidence in this regard shows that the police officer's belief that he had the legal right to search had a basis in fact. Even if, contrary to the majority view, he did not have the legal right to search, his conduct was neither deliberate nor reckless. He believed the facts satisfied the legal requirements to search under

[50] This is not a case in which the officers' mistake was of such a character. They were not mistaken in their assessment of whether the facts satisfied a known legal requirement. They were in ignorance of the legal requirement, and they were in ignorance of it because they did not consider the constraints or requirements imposed by s 31(1) in the situation that confronted them.

[51] Nor is this a case in which the officers had to deal with a vague or ambiguous provision and reached a reasonable, though mistaken, view of its meaning. They operated on a mistaken assumption that they had the power to search without a warrant, and failed to give any thought to whether they lacked such a power. If any thought had been given to the terms of s 31(1), it would have been obvious that there was a risk that searching the vehicle without a warrant was unlawful in the circumstances. Consultation with Sergeant Tuffley may have highlighted the risk. Reference to the terms of s 31 would have identified the risk. The police were not in the wilderness. They were close to a police station, a watchhouse and a Courthouse. The terms of s 31(1)(c) were readily available to them or those from whom they might have sought advice. That subsection contains an explicit constraint upon the power to search a car without a warrant. The conditions which constrain the power did not exist.

[52] The officers may not have given any thought to whether there was a risk that their conduct in searching the car without a warrant was illegal. However, that does not mean that their failure to think about the issue and their conduct in embarking upon a search cannot be characterised as reckless.

[53] The officers had experience in conducting searches of vehicles without a warrant in prescribed circumstances and in circumstances in which a vehicle and its occupants had been detained. This did not provide a justification for them to assume that a search without a warrant could be conducted in the prescribed circumstances, disregarding the fact that the vehicle and its occupants had not been detained. The detention of a vehicle and its occupants presents a materially different situation to one in which a vehicle is located in a carpark. For one thing, there are no occupants of the car who might destroy or conceal the evidence. The presence and assistance of the occupant or occupants of the detained vehicle may ensure that any search does not result in inadvertent or unnecessary invasions of privacy.

[54] The term "vehicle", as defined in Schedule 6 of the Act includes the same meaning as that under the Road Use Management Act 1995 (Qld), and also extends to an aircraft or a boat. Such a "vehicle" may be a caravan or some other place in which an individual resides. Any search of private property, including a car, involves infringement of rights and a possible invasion of privacy. As was recently observed by Boddice J in R v Milos:

"The use of search powers by police involves an invasion of interests which the common law has traditionally gone to great lengths to protect." [21]

[55] I conclude that the unlawfulness of the search reflected a reckless disregard of the constraints imposed by law under s 31.

[56] If, however, the officers' disregard of the constraints imposed by law under s 31(1) is not to be characterised as reckless, it entailed a serious disregard of a condition upon their authority to search without a warrant. This was not a minor infringement of some procedural requirement. It was not a case in which the officers, knowing of a constraint upon their powers or procedures required by law, inadvertently failed to comply with those constraints or procedures.

[57] Instead of proceeding on the erroneous assumption that they possessed a power to search a vehicle without a warrant simply if the "prescribed circumstances" were reasonably suspected to exist, the officers should have considered the circumstances in which they and other police officers are authorised to search without a warrant. If they had done so, they would have recognised the constraint on their powers that existed, notwithstanding the presence of prescribed circumstances. Even if the constraint was not obvious to them upon a consideration of the terms of s 31, reference to it would have made obvious that there was a clear risk that such a search would be unlawful.

[58] The conduct of the officers in acting without regard to the constraints imposed by law under s 31 favours the exclusion of the evidence.

[59] The drugs found in the car are cogent evidence of the commission of the offence with which the applicant is charged. The unlawful conduct in this case does not involve a procedure, compliance with which, is designed to enhance the reliability of the evidence. The unlawful search does not affect the cogency of the evidence that was obtained.

[60] The cogency of the evidence is a factor favouring admission, at least when the unlawfulness arises only from mistake, and is neither deliberate nor reckless.[22] It is otherwise where the unlawfulness in obtaining it was deliberate or reckless. Stephen and Aickin JJ in Bunning v Cross observed:

"To treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless, may serve to foster the quite erroneous view that if such evidence be but damning enough that will of itself suffice to atone for the illegality involved in procuring it. For this reason cogency should, generally, be allowed to play no part in the exercise of discretion where the illegality involved in procuring it is intentional or reckless. To this there will no doubt be exceptions: for example where the evidence is both vital to conviction and is of a perishable or evanescent nature, so that if there by any delay in securing it, it will have ceased to exist." [23]

Their Honours' observations in this passage provide important guidance, but ultimately state a general rule to which there are exceptions. I do not consider that the reckless disregard of the constraints imposed upon the power to search without a warrant should result in a finding that the cogency of the evidence has no part to play in the exercise of my discretion. The evidence is vital to the conviction of the applicant. This is not a case in which the evidence was of a perishable or evanescent nature, so that if there had been any delay in securing it, it would have ceased to exist. Although I regard the officers' conduct as reckless, it did not involve a disregard of procedures by officers who were lazy or disinclined to comply with a known legal requirement. In circumstances in which the evidence that is vital to a conviction is cogent, and its cogency is not affected by the officers' unlawful conduct, I consider that some weight should be placed upon the cogency of the evidence as a factor favouring admission.

[61] The evidence is vital to the successful prosecution of the applicant. There is no untainted evidence that can stand in its place. For this reason, there is a public interest in admitting it. The importance of the evidence is a factor favouring admission.

[62] The more serious the offence, the more likely it is that the public interest requires the admission of the evidence.[24]

[63] The circumstance that the quantity of drug was over three times the schedule amount makes this a serious offence. This is reflected in the maximum penalty. Although the applicant was a heroin addict, the quantity of heroin found in his car leaves open a finding that the heroin was not entirely for his personal use. The inference of commerciality is not excluded by the fact that it was not divided into small parcels or the fact that there was no evidence, such as mobile telephone records, to suggest that the heroin was to be supplied for profit to others. The applicant's counsel submits that commerciality is not a presumption "one would automatically jump to in this case."

[64] The seriousness of the offending is highlighted by the fact that the applicant was on bail for trafficking in heroin at the time.

[65] The applicant is now serving a sentence of ten and a half years imprisonment for that trafficking offence.[25] This is relevant since if the evidence is not excluded and the applicant is convicted, his punishment will be affected by the sentence he is currently serving and totality arguments. He would receive a cumulative sentence. His counsel submitted that, considered separately, he might be sentenced to a period of imprisonment of 18 months, but any cumulative sentence would ameliorate that, such that he might be required to serve a further period of six months and certainly not a sentence in the order of one or more years before being eligible for parole. Counsel for the respondent fairly acknowledged that any cumulative sentence was not likely to be a substantial term of imprisonment.

[66] The nature of the offence and the likely period of imprisonment to which the applicant will be sentenced if convicted is substantially less than one for drug trafficking.[26] Still, the offence is a serious one, and exclusion of the evidence is likely to result in the applicant escaping punishment. This is contrary to the public interest, even if the cumulative term of imprisonment is not likely to be substantial.

[67] I note in passing that it is possible that the parole authorities might have regard to the applicant's conduct in possessing heroin whilst on bail for the drug trafficking offences for which he was convicted. Such conduct might be relevant to a consideration of whether the applicant is likely to comply with conditions of parole. However, any delay in granting parole for that reason would not, strictly speaking, involve punishment for the offence of possession. It would be a determination of the date, if any, upon which the applicant was to be released on parole so as to serve the balance of his term of imprisonment in the community. If, instead, one was to treat it as a kind of de facto punishment for the possession of heroin, it is too speculative to properly assess whether or not a parole board at some distant time in the future will have regard to the applicant's conduct on 22 September 2009, and the respects in which it might have regard to it.

[68] The fact that the applicant is currently serving a lengthy period of imprisonment for drug trafficking does not mean that he should escape punishment for the offence for which he is currently charged. It does, however, mean that he will remain in custody for a long time and that the absence of a conviction in the present proceedings will not result in his being back on the streets soon, peddling drugs and also engaging in police pursuits at great danger to the police and other citizens.

[69] This issue has been addressed above. The unlawfulness in this case did not involve derogation of a fundamental right, such as the right to silence.[27] It did not involve an invasion of the applicant's home. However, it involved an invasion of property to which the applicant was entitled to have exclusive possession in circumstances in which the police required a warrant to obtain the sought-after evidence.

[70] I am not concerned in this case with the importance of strict adherence to statutory requirements for the obtaining of search warrants. Instead, I am concerned with the purported use of a power to search a place without a warrant in circumstances in which a warrant was required. To adopt the words of Holmes J (as her Honour then was) in R v Christensen[28], ultimately I have to consider whether the purported use of a power which entailed the invasion of the privacy or property of a citizen, "with so little regard for what was actually permitted by the statutory provisions, is an error of such proportions as to tilt the balance of public interest against the receipt of evidence so obtained."[29]

[71] The unlawful conduct involved a misplaced assumption that a vehicle can be searched without a warrant if a police officer reasonably suspects that unlawful dangerous drugs are located in it. A car may not have the same status as a person's home, which our legal tradition equates with a castle. Yet the law regulates police searches of cars and other vehicles in which individuals may live, spend much of their time and leave personal items and confidential documents. Rather than operating on the working assumption that a vehicle can be searched without a warrant if the "prescribed circumstances" are reasonably suspected, the starting point for the police should have been to appreciate that specific authority was required to search such a private place. This would have directed their attention to

s 31 and the constraints that it placed upon searching an unattended car. The police did not think about the power to search such an unattended car. They treated it the same as a car which had been detained along with its occupants. This was to ignore a constraint upon their power to search without a warrant.

[72] Even if the police's conduct is not characterised as reckless, it involved a serious disregard of constraints upon the exercise of official power.

Whether such conduct is encouraged or tolerated by those in higher authority

[73] I have earlier made findings in this regard. The officers' conduct has had no consequences for them. They have not been counselled. The officers did not acknowledge having made any mistake in searching the car without a warrant. Prior to giving evidence they were apparently not told by their superiors or anyone else that s 31 of the Act did not give them authority to search the car in the circumstances.

[74] It is not entirely clear whether Sergeant Tuffley's request for the officers to seek a post-search approval order arose because he had real concerns about the legality of their search. His evidence initially was that such an application was more of an "insurance policy" to ensure that evidence was kept. He mentioned that this was a poor choice of words on his part and said that he thought it "prudent" to obtain such an order.

[75] This is not a case, like The Queen v Milos[30], in which the relevant officers apprehended that they needed to seek a post-search approval order and then did so. The officers in this case were directed to make such an application and thought that such an application was unnecessary.

[76] I am loathe to be critical of officers Peek and Ricardo when they apparently knew no better, and in circumstances in which they have not been counselled or educated about constraints on the power which they purported to exercise.

[77] Their conduct has been tolerated by those in higher authority.

[78] The misapprehension of the extent of their powers by officers Peek and Ricardo does not appear to be isolated. Because their misapprehension about the extent of their powers has not been corrected by education or some other remedy, it is entirely possible that many other officers, including experienced officers like them, will exceed their powers by conducting searches of unattended vehicles without a warrant. Toleration of the conduct in question by those in higher authority, and the absence of corrective action to remedy matters, supports the case for exclusion.

[79] I have earlier found that it would have been relatively easy for the police officers to obtain a warrant without substantial delay. The evidence would not have been in jeopardy during the time that they sought such a warrant. The ease with which the evidence could have been obtained without unlawful conduct is a factor favouring exclusion of the evidence. This is despite the fact that the unlawfulness did not involve a deliberate "cutting of corners."[31] Police should be encouraged to apply for a warrant if the law does not permit a search to be undertaken without a warrant. In circumstances in which a warrant could have been easily obtained with no substantial delay, the court should avoid the undesirable effect of curial approval, or even encouragement, being given to a failure to comply with the law. Exclusion also serves the policy of deterring unlawful conduct and avoiding any assumption by law enforcement agencies that they can disregard requirements that constrain the power to search without a warrant without suffering the consequence of evidence being excluded.[3]

[80] The applicant is charged with a serious offence: possession of heroin. The charged offence is a serious one, notwithstanding the fact that, if convicted, the cumulative sentence that will be imposed upon him may not be substantial because he is already serving a lengthy period of imprisonment for drug trafficking. There is a public interest in bringing offenders to justice, and this public interest is strong in a case in which the evidence which is sought to be excluded is cogent and vital to the prosecution case.

[81] The possibility that the applicant may escape punishment for the offence of drug possession arises because the police disregarded a constraint imposed by law upon their power to search a vehicle without a warrant. The police did not misconstrue some awkwardly drafted provision and, on the basis of such a mistake, misapprehend the extent of their powers. They did not consider the legal basis upon which they might search an unattended car without a warrant. They operated on the mistaken assumption that their reasonable suspicion that drugs were in the car was sufficient. They did not give any thought to whether there was a risk of the search being illegal. If they had given the matter some thought and considered the relevant provision, it would have been apparent to them that there was a risk that they might undertake an unlawful search. If they had thought about that matter, and the risk that cogent evidence might be excluded and the applicant escape conviction, then prudence would have dictated that they obtain a warrant to search the vehicle. Such a warrant could have been easily obtained without delay and without jeopardising the evidence.

[82] Even after the search was completed, and Sergeant Tuffley told the officers to obtain a post-search approval order, the officers did not alter their views. In the following years they have apparently not received any counselling or education to the effect that their understanding of their powers was wrong.

[83] The principle that the Court should not admit the tainted fruits of unlawful conduct by law enforcement agencies, lest the administration of justice be brought into disrepute, is engaged. So too is the need to deter unlawful conduct by those entrusted with powers of law enforcement in circumstances in which the unlawful conduct in this case apparently has been tolerated by those in higher authority.

[84] The unlawful search involved a reckless disregard by the officers of the extent of their powers. There was intrusion into a place which, in the circumstances, the law required a warrant to search. The disregard by the officers of what was permitted by s 31(1) of the Act is a significant factor which favours exclusion.

[85] Convictions obtained by the aid of unlawful searches have the potential to suggest court approval being given to the unlawful conduct of those whose task it is to enforce the law. It has the potential to bring the administration of justice into disrepute. Admitting such illegally obtained evidence in a case in which the evidence might easily have been obtained legally would do little to encourage respect for the law, and may even encourage law enforcement officials to assume that such unlawful conduct can be engaged in without consequences, including the consequence of evidentiary exclusion.

[86] It is contrary to the public interest that the possession of heroin should go unpunished even in a case like this in which the applicant was a heroin addict, is presently serving a lengthy period of imprisonment for another drug offence and might not receive a lengthy cumulative sentence if convicted. However, in the circumstances of this case, the public interest in bringing a wrongdoer to justice and the factors favouring the admission of the evidence are outweighed by the factors supporting its exclusion. Accordingly, I make the following direction in these proceedings:

That the evidence obtained during the search of a white Hyundai Accent motor vehicle, registration number TSR 363 on 22 September 2009 be excluded as evidence in the trial of the applicant in proceeding indictment No 603/12 in the Supreme Court of Queensland.

[87] My decision, and the reasons for it, are not intended to affect the consideration which may be given by a judge of the District Court to a similar application in proceedings in that court for the home invasion offence. It will be a matter for that judge to assess relevant factors and exercise his or her discretion according to law. Relevant factors might include the nature and seriousness of the home invasion offence, the fact that the Ford keys were not the target of the search, that the officers who conducted the search were not investigating the home invasion offence and that the officer who was, Sergeant Tuffley, took the prudent course of directing a

post-search approval order be sought once he learned about the search. Other factors will require consideration by that judge.

[88] The balancing exercise undertaken by me on the evidence in this proceeding does not determine where the balance will lie in a different proceeding in the light of evidence given before a different judge.

[1] [1978] HCA 22; (1978) 141 CLR 54.

[4] Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 at 217.

[5] R v Lobban [2000] SASC 48; (2000) 112 A Crim R 357 at 367 [39] - [40]; Pollard v The Queen [1992] HCA 69; (1997) 176 CLR 177 at 203; Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 at 32; The Queen v Swaffield (1998) 192 CLR 159 at 175-180, 190-191, 212.

[6] Ridgeway v The Queen (supra) at 32; The Queen v Swaffield (supra) per Brennan CJ at 176-182.

[7] Ridgeway v The Queen (supra) at 39.

[8] The Queen v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 335.

[9] I refer to officers by the rank they held at the time. Mr Ricardo is now a Detective Sergeant.

[10] cf Police Powers and Responsibilities Act 2000 (Qld), s 160 (search to prevent loss of evidence).

[11] cf Police Powers and Responsibilities Act 2000 (Qld) s 162(1)(b).

[12] see R v Day [2008] QSC 358 at [27] - [28].

[13] Explanatory Notes, Police Powers and Responsibilities Bill 1997 at 29.

[14] Explanatory Notes, Police Powers and Responsibilities Bill 2000 at 44.

[16] [2001] NSWSC 523; (2001) 123 A Crim R 66 at 76.

[17] DPP v Leonard [2001] NSWSC 797; (2001) 53 NSWLR 227 at 248 [103].

[18] Mellifont, K Fruits of the Poisonous Tree Federation Press, Sydney, 2010 at 153.

[19] [2003] NSWCCA 385.

[21] Unreported, Boddice J, SC No 817 of 2011, 3 December 2012, at 13.

[24] Bunning v Cross (supra) at 80; see R v Dalley [2002] NSWCCA 284; (2002) 132 A Crim R 169 per Spigelman CJ at 171-172 [3] - [7], per Blanch AJ at 189 [102], cf per Simpson J at 188-189 [95] - [97] in the context of

s 138(3)(c) of the Evidence Act 1995 (NSW).

[25] R v Versac [2011] QCA 318.

[26] cf R v Williamson [2009] QSC 434 at [54] in which it was acknowledged that a conviction after

trial for drug trafficking in that case would attract a sentence of at least 10 years imprisonment.

[28] [2005] QSC 279; (2005) 156 A Crim R 397.