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Police and their power to stop you: Is it always lawful?

Case Note: R v Paull [2021] QSCPR 22

Facts

On 2 July 2020, two uniformed police officers were conducting mobile patrols in the Cairns CBD in a marked police vehicle. At approximately 1:50am, Ryan Connor Paull (‘the Applicant’) was seen by police to be walking across the road and continued walking on a footpath. Police stopped the Applicant, asked him to produce identification and subsequently detained him for the purpose of being searched.

At the start of the search, the Applicant stated words to the effect of “I’m in trouble…” and voluntarily produced a bag from inside his pants containing 26.812 grams of 3,4-methylenedioxymethamphetamine (‘MDMA’), 18.92 grams of which were pure. He was also found to be in possession of a small amount of cannabis and a glass pipe. He told police it was for personal use, and he was subsequently charged. The indictment before the Court charged the Applicant with one count of possessing MDMA over 2 grams (circumstance of aggravation) and one count of possessing cannabis (simpliciter).

Mr Paull made an application to the Court to have the evidence of his possession and admissions of the items excluded from his trial. The basis for the application was that the police stopping, detaining and searching him was unlawful, and further, the items found in the Applicant’s possession and admissions were unlawfully obtained.

Issues for the Court

The Court needed to determine the following:

  1. Was the evidence unlawfully obtained by Police?
  2. Were Police exercising their power under the Police Powers and Responsibilities Act 2000 (Qld) (‘PPRA’) when they stopped the Applicant and when they conducted a search of him?
  3. If the evidence was indeed unlawfully obtained, should the Court exercise its discretion to exclude the evidence in the circumstances?

What are Police powers relating to stopping people?

Police have the power to stop a person and require them to provide their name and address in ‘prescribed circumstances’.[1] These prescribed circumstances are set out in section 41 of the PPRA (e.g., a police officer reasonably suspects the person has committed an offence). [2]

Police also have the power to stop, detain and search a person (and anything in that person’s possession for anything relevant to the reason why they were detained) without a warrant where police reasonably suspect that any of the prescribed circumstances under section 30 of the PPRA exist;[3] for example, the person has something that may be an unlawful dangerous drug or stolen property.[4]

What is Reasonable Suspicion?

‘Reasonably suspects’ is defined by Schedule 6 of the PPRA as “suspects on grounds that are reasonable in the circumstances”. There needs to be a factual basis to reasonably ground that suspicion.[5]

The police submitted that the Applicant had been walking ‘extremely fast’, with his head down and no other persons were around the area at the time when they stopped him. It was also submitted that they approached the Applicant and engaged in a consensual ‘citizen-to-citizen exchange’,[6] and during this exchange the Applicant’s behaviour raised a reasonable suspicion which justified his detention and subsequent search.

The Court noted that the CBD has several hostels, permanent housing and apartment buildings therefore residents would be walking to and from their residence/accommodation 24 hours a day and, at that stage, there were no COVID restrictions in place that prohibited this conduct.

The Court did not accept that there were “no other persons in the CBD” as another pedestrian was seen to be walking in the area on one of the officer’s body worn cameras.[7] The Court accepted that few people would be out walking at that time of night however, the mere act of walking fast at night was not enough to reasonably ground a suspicion that a prescribed circumstance existed.

Exercising Discretion to Exclude

A trial Judge has the discretion to exclude evidence on public policy grounds in circumstances where the evidence was obtained by police’s unlawful conduct.[8]

A trial judge must “engage in a balancing process to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and 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”.[9] Where a Court exercises this direction, public policy (in relation to the administration of justice) outweighs the public interest in seeing the wrongdoer convicted.

Decision

The Court held that none of the prescribed circumstances under the PPRA which would allow police to stop, detain and search the Applicant were presented and therefore, they did not have the power to do so. Had police not stopped the Applicant, none of the subsequent events would have occurred.

The Court exercised its discretion and excluded the evidence of the Applicant’s possession of the items as well as his admissions from evidence at his trial.

Do you need assistance in criminal proceedings?

If you have been charged and you are unsure as to whether due process has been followed by law enforcement in charging you, speak to a lawyer.

Our Criminal defence lawyers can assist you in advising you of your rights and appearing with you for Court representation. Contact our client engagement team and make an appointment with us today.


[1] Police Powers and Responsibilities Act 2000 (Qld) s 40, 41.

[2] Ibid s 41(b).

[3] Ibid s 29.

[4] Ibid s 30(a)(ii)-(iii).

[5] George v Rockett [1990] 170 CLR 104.

[6] R v Paull [2021[ QSCPR 22, [7].

[7] Ibid, [19].

[8] Ridgeway v R [1995] 184 CLR 19, 30-31 per Mason CJ, Dean and Dawson JJ.

[9] R v Paull [2021[ QSCPR 22, [4].

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