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Unlawful search blocks evidence

We do not live in a police state, a Supreme Court Justice has told Cairns patrol officers after he ordered the exclusion of evidence they obtained during an unlawful search of a vehicle almost two years ago.

In a decision published on Wednesday, Justice Henry was highly critical of the police officer who pulled over Neale Graham Casemore in Edmonton in June 2022.

“Senior Constable AG” had told Mr Casemore the reason for pulling him over was that someone linked to the vehicle was unlicensed. However, the officer had earlier spotted the ute parked in the driveway of a home where drugs had been found in 2017 and 2020.

A subsequent search of the vehicle uncovered 70 grams of methylamphetamine, scales, $2360 in cash and a pipe.

Justice Henry determined Senior Constable AG did not have the reasonable suspicion required to permit a lawful search under section 31(1) of the Police Powers and Responsibilities Act 2000 (Qld).

The Crown submitted six facts as grounds for a reasonable suspicion there were drugs in the vehicle:

  1. the time of night (1am);
  2. the nervous state of Mr Casemore;
  3. that the vehicle’s registered owner had “previous drug intelligence and occurrences”;
  4. that Mr Casemore had “previous drug intelligence and occurrences”;
  5. that the vehicle had been seen parked at a home where dangerous drugs had been located in the past; and
  6. that the driver of another vehicle which had left the property had been charged with drug trafficking.

“It will be immediately apparent that facts 3 to 6 are of the same theme,” Justice Henry said.

“Fact 3, about the vehicle’s registered owner having some previous ‘drug intelligence and occurrences’, is bereft of further detail. What intelligence? What occurrences? When? Where? It says nothing as to the likelihood of drugs being present at the time and place in question.

“Fact 4, about the applicant’s ‘previous drug intelligence and occurrences’, suffers the same deficiency.

“Fact 3 was evidently learned of when Senior Constable AG went behind the vehicle with the applicant’s licence to consult Senior Sergeant MR when she was consulting her QLiTE pad.

“He could not have known any sooner, for he did not know who the driver was until then. In that consultation phase, Senior Sergeant MR said, apparently of the applicant, ‘drug driving, possess utensils’.

“That such information was evidently enough to earn the description ‘previous drug intelligence and occurrences’ well explains the applicant’s expressed perception he was being picked on.

“Again, the information says nothing as to the likelihood of drugs being present at the time and place in question. This is a significant weakness.”

Justice Henry said facts 5 and 6 “pursued a similarly vague theme”.

“The emerging sense of the founding factual support for the suspicion is that it was just a roll of the dice, premised on the odds of someone who had once committed a drug offence and associated with others in the similar category, being in possession of drugs, being higher than for the citizenry generally. Such a gamble is well short of a reasonable suspicion,”  he said.

He said fact 1 was “just an aspect of that probability reasoning, based on the kind of person that the police perceived the applicant to be”.

“We do not live in a police state. There is not a curfew in place,” he said.

“Obviously less traffic moves about suburbia late at night than earlier, but there is a very wide array of circumstances in which law-abiding citizens drive late at night in suburbia, particularly on a weekend, as this was.

“One such circumstance is that which the applicant told the police of, namely that he was driving home from a friend’s place.”

Justice Henry said there was nothing specific about any of the facts which gave their accumulation any particular force.

He also said it was curious that if Senior Constable AG had a reasonable suspicion there were dangerous drugs in the vehicle, there was no test of Mr Casemore for the presence of drugs in his body, or alcohol.

“That omission speaks volumes as to how compelling the six facts relied on in reality were,” he said.

“It is difficult to avoid the impression that Senior Constable AG’s past good luck in intercepting a vehicle from the address in question, with all the discoveries and arrests it led to, was a strong motivating influence of the search.

“It reinforces the sense this was a simple gamble, a playing of the odds in the hope of the big pay-off of drugs being found and broader criminal drug activity again being exposed.”

Justice Henry said the possession of a commercial quantity of drugs was “unquestionably a serious offence and relates to a drug with notoriously pernicious effects upon our community”.

“On the other hand, the frequency with which applications like the present expose unlawful searches is concerning,” he said.

“The police, of course, have a difficult job, but there exist many lawful, legislative means and powers at their disposal to investigate crime, some of which involve significant intrusions on the citizenry’s privacy.

“It is elementary in deploying those means and powers that police comply with the legislative conditions for their exceptional operation.

“That yet again it did not occur here, whether through ignorance or the paying of lip service to the legislative requirements, bespeaks a need to ensure such unlawfulness does not receive curial approval.

“The undesirable effect of this court being seen as tolerating the circumstances prompting this unlawful search materially outweighs the undoubted public interest in the conviction and punishment of the applicant.

“It follows in the balancing exercise that in my conclusion the evidence the subject of the application should be excluded.”

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