Guzzling a drink and emergent searches of a vehicle.

Case Note QLD - R v Aloia [2022] QSCPR 1

?https://archive.sclqld.org.au/qjudgment/2022/QSCPR22-001.pdf

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Facts: Pre-trial ruling for the exclusion of evidence. In August 2020 a police officer was advised to be on the lookout for a vehicle with “major defects”. The police officer located the vehicle pulling it over to administer a RBT and check if it was the vehicle with the defects. It was conceded the RBT was a lawful reason to pull the defendant over. The RBT came back clear, the police officer observed the defendant to be “drinking rapidly” (indicating his was nervous). In later statements the officer added he thought it was odd he would be driving from his grandfather’s place at 9pm and Police intel had notes to the effect “Drug user – search at every opportunity”. The defendant had three entries for minor offending, 2 x drug driving and lower end drug charges where diversion was offered, the most recent offence was November 2019.

A search of the vehicle was conducted locating 33.6 grams of MDMA. The defence sought to exclude the evidence on the basis the search was unlawful as the police did not hold the reasonable suspicion required under 29(1) of the Police Powers and Responsibilities Act Qld.

Finding:

The latter additions to the officers reason for reaching “reasonable suspicion” was held not to be credible, leaving the nervous guzzling of the drink in the car to be the suspicion leading to the search of the vehicle. There are any number of innocent explanations for drinking quickly, thirst, not wanting the drink to go warm and others. It was not sufficient to allow the officer to search the vehicle.

Parties cited R v Jaudzems (2014) 239 A Crim R 226 and R v Keen [2016] 2 Qd R 1 for when the suspicion arises from police intelligence and in turns on the individual circumstances of the case.?The search was unlawful, the “reasonable suspicion” required for a search was not supported by the evidence, on balance the evidence should be excluded from the trial. In this instance the information was dated and not specific enough to reach the threshold.

Upon balancing the Bunnings v Cross (HH cited Ridgeway v R), the court excluded the evidence.

Notes for practice:

• An example of where unlawful searches has resulted in the exclusion of the evidence;
• Check the reason for the search, what is the force of the information police are relying on?

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