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Case Note QLD R v Swayn [2021] QSC 116

Murray Torcetti Lawyers are criminal lawyers in Brisbane & Caboolture. We write our own case notes from recent criminal decisions for internal purposes.

However, unlike your annoying sibling, we don’t mind sharing.

Facts: The defence makes a pre-trial application for the exclusion of evidence. If the search of the vehicle under section 31 of Police Powers and Responsibilities Act “PPRA” was unlawful, and the evidence excluded, the Crown case for trafficking would be substantially weakened. Section 31 of the PPRA gives the police powers to search a vehicle without a warrant, section 32 lists the circumstances where s 31 is enlivened.

Police are patrolling in an area known for drug activity, they observe a vehicle drive into a communal car park and follow them in for the purpose of a license check and RBT, the registration on the car expired 5 days earlier. The driver gets out of the vehicle and locks the car, the police ask him to get back into the vehicle when getting back into the car the driver attempts to shut the car door. The police officer then detains the driver for the purpose of a license check and breath test. The driver was asked several formal questions, the officer observed the driver to be anxious and displaying signs of being affected such as bloodshot eyes, dilated pupils, and looking “strung out”. The breath test returned a negative result.

After the negative breath test, the officer formed a view the driver may have been under the influence of drugs and asked the driver to exit the vehicle. The driver then yawned, grabbed the wheel and the key starting to turn the vehicle on. As the officer suspected the driver was trying to make an escape, the driver was pulled from the vehicle and arrested for obstructing police.

A search of the driver and the vehicle turned up cash, drugs, and a phone with evidence of trafficking on it.

The grounds of the application were:

1. The police could not have formed a reasonable suspicion there were drugs in the vehicle.
2. There is authority suggesting for a search of the vehicle, there must be a connection between the vehicle and the defendant, as the driver was outside of the vehicle when the car was searched the search was unlawful.
3. Once the driver was arrested for obstructing police, the power to search under s 32 PPRA was extinguished.
4. Once as the driver was unable to re-occupy the vehicle due to being arrested, he was not a driver of the vehicle and the search was unlawful.

Finding:

s 32 of the PPRA requires the use of the term “reasonably suspects” … “may be an unlawful dangerous drug” further defined in the definitions as “suspects on grounds reasonable in all the circumstances”. Consistent with the common law, there must be a factual basis to reasonably ground the suspicion, proof of the fact grounding the suspicion is not required George v Rockett (1990) CLR 104. It is on the Crown to prove on the balance of possibilities the factual basis for the suspicion R v Keen [2016] 2 Qd R 1. The suspicion is based on how things may appear to the holder of the suspicion but not the circumstances as they may be in fact, Commissioner of Police v Flanagan [2019] 1 Qd R 249.  The suspicion must be objectively reasonable where the facts would result in suspicion for a reasonable person Rowe v Kemper [2009] 1 Qd R 247.

Reasonable Suspicion: The experience of the officer, the indicia of substance abuse, and the behavior of the driver would give rise to a reasonable suspicion the driver has dangerous drugs in the car allowing for the search of the vehicle without a warrant.

Once the pre-conditions for the search of the vehicle have been met, the exercise of the power to search the vehicle no longer requires there be a connection between the defendant and the vehicle.

A person who is arrested after being detained is still detained. The power to search occurs after pre-conditions are met not on what happens after as observed in R v Kairouz [2017] QSC 270. Even though the driver was unable to enter the vehicle after being arrested.

After concluding the search was lawful, the Judge went on to state that even if the search was unlawful the evidence would not have been excluded due to the discretion in Bunning v Cross (1978) 141 CLR 54.

Notes for practice:

1. A summary of how ‘reasonable suspicion” can be formed. When reading police facts and statements ask yourself what objective facts gave rise to the suspicion leading to the search.
2. Once the powers to search a vehicle have been formed where associated with a driver, being arrested outside the vehicle does not extinguish the search powers.

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