Queensland Supreme Court Dismisses Unlawful Search Application In Four Counts of Drug Trafficking and Possession Case
In R v TZY [2024] QSC 238, the Supreme Court of Queensland determined an application to exclude evidence obtained during a warrantless search. TZY, the applicant, faced charges of drug trafficking, drug possession and possessing items for drug-related activities.
The application was an effort to exclude evidence gathered in an unlawful search by police. The case centred on two issues: whether the police officer conducting the search held a “reasonable suspicion” under the Police Powers and Responsibilities Act (PPRA) and whether the officer’s delayed activation of a body-worn camera (BWC) constituted sufficient impropriety to exclude the evidence under the Bunning v Cross discretion.
Search and Collection of Evidence
The search took place after police officers, Sergeant James David Driver and Senior Constable Timothy Brown, observed the applicant exhibiting behaviours associated with drug use. These behaviours included “glazed, bloodshot eyes, gross and jerky motor movements and an unwashed and unhealthy appearance.” It was noted that the fingers of his right hand were sporadically moving, with him clenching and unclenching his hand. This movement is commonly known as “spirit-fingers,” commonly associated with symptoms of alcohol or drug withdrawal.
A search on the Police computer database revealed the applicant had a criminal history in relation to drugs and that he was at that time on bail for three counts of entering premises and committing an indictable offence, among others. This finding and the applicant’s behaviour and appearance caused the police officers to conduct a search of his person.
During the search, the officer found drugs, a mobile phone and paraphernalia. The mobile phone later revealed evidence of the applicant’s involvement in drug trafficking over a 10-month period, supplying substances such as MDMA, methylamphetamine and cannabis, as well as prescription medication and cocaine when requested or available, to about 40 customers.
Applicant’s Defence and the Court’s Dismissal of the Application
The applicant argued the search was unlawful because the officer lacked reasonable suspicion and breached the Operational Procedures Manual or OPM by not activating the camera immediately upon forming the intent to search. The court ruled that the officer’s suspicion was reasonable, noting the applicant’s appearance, behaviour and criminal history as sufficient grounds. However, the court found the officer breached the OPMs by activating the camera late, calling this conduct improper but not deliberate.
Applying the Bunning v Cross discretion, the court weighed the impropriety against the public interest in prosecuting serious offences. It concluded that the breach did not impact the cogency of the evidence or unfairly disadvantage the applicant. The seriousness of the trafficking charges and the lawfulness of the search itself supported allowing the evidence.
Conclusion
The Supreme Court dismissed TZY’s application, finding the search lawful and the evidence admissible despite the procedural breach. The court emphasised that in cases involving significant criminal activity, procedural lapses must be weighed carefully against the public interest in prosecution.
The decision reinforces that improprieties, when minor and not impacting the reliability of the evidence, are unlikely to result in exclusion in serious cases.
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