Murray, Hale and Olsen (Pseudonyms) v The Queen - [2017] VSCA 236

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0136

MARSHALL MURRAY (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgement has been anonymised by the adoption of pseudonyms in place of the names of the applicants.

S APCR 2017 0139

ROBERT HALE (A PSEUDONYM)	Applicant
v
THE QUEEN	Respondent

S APCR 2017 0143

SHAUN OLSEN (A PSEUDONYM)	Applicant
v
Respondent
THE QUEEN

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JUDGES:	PRIEST, BEACH and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 August 2017
DATE OF JUDGMENT:	6 September 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 236
JUDGMENT APPEALED FROM:	DPP v Marshall (Unreported, County Court of Victoria, Judge Lacava, 20 June 2017)

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CRIMINAL LAW – Interlocutory Appeal – Police search without warrant – Drug of dependence – Methylamphetamine – Searches of applicants and vehicle – Whether searches were conducted legally – Whether police had reasonable grounds of suspicion – Whether evidence obtained in illegal search admissible – Spectrum of improper conduct by police – Probative value of evidence obtained – Applications for leave to appeal dismissed – Drugs, Poisons & Controlled Substances Act 1981 s 82 – Evidence Act2008 s 138 – Director of Public Prosecutions v Marijancevic (2011) 33 VR 440 – George v Rockett (1990) 170 CLR 104.

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APPEARANCES:

Counsel

Solicitors

For the Applicant, Murray

For the Applicant, Hale

For the Applicant, Olsen

For the Crown

Mr M Pena-Rees
(solicitor)

Mr P J Hannebery

Mr D P Sheales

Mr C Boyce SC with
Mr M E Regan

Armour Legal

Michael Gleeson & Associates

Stephen Andrianakis & Associates

Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA:
BEACH JA:
KAYE JA:

The applicants each seek leave to appeal against an interlocutory decision made by a judge of the County Court to admit evidence that had been obtained as a result of a search conducted by police of the applicants in a motor vehicle in which they were travelling in Pascoe Vale on 16 February 2015. The search was conducted without a warrant pursuant to s 82 of the Drugs, Poisons & Controlled Substances Act 1981 (‘the Act’).

At the conclusion of oral submissions, we unanimously dismissed the application for leave to appeal. We now provide our reasons for that conclusion.

The circumstances

At 11:00 pm on 16 February 2015, Sergeant Peter Jones and First Constable David Smith were travelling in a marked police car, driven by Jones, north on Derby Road, Pascoe Vale. As the vehicle approached the intersection of that road with Boundary Road, a dark coloured BMW sedan cut across their path, and turned right into Derby Street. It then accelerated in a southerly direction at a fast speed. Sergeant Jones performed a U-turn in the police vehicle, and gave pursuit. The BMW then braked heavily, and turned left (east) into Kent Road. The police officers momentarily lost sight of the BMW, which, it transpired, had again turned left to travel north in Sunshine Street. The police officers…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] VSCA 236
Decision Date: 6 September 2017

CaseChat Overview and Summary

The appellants, Murray, Hale, and Olsen, appealed an interlocutory decision that upheld the legality of searches conducted by police officers. The searches resulted in the discovery of methylamphetamine, a drug of dependence. The appellants challenged the legality of the searches of both themselves and their vehicle, claiming that the police lacked reasonable grounds for suspicion. They argued that the evidence obtained from these searches should be excluded due to the alleged illegality of the searches. The Court of Appeal was tasked with determining whether the searches were conducted legally, whether the police had reasonable grounds for suspicion, and if the evidence obtained should be admitted.

The court considered the legal standards for police searches without a warrant, focusing on the requirement of reasonable suspicion under the Drugs, Poisons and Controlled Substances Act 1981. It examined whether the police actions fell within the spectrum of conduct considered proper in the circumstances. The court assessed the probative value of the evidence against the potential prejudice to the appellants if it were admitted. It referenced previous cases, including Director of Public Prosecutions v Marijancevic and George v Rockett, to guide its decision on the admissibility of evidence obtained from an illegal search under the Evidence Act 2008.

The Court of Appeal found that the searches were conducted legally and that the police had reasonable grounds for suspicion. The court concluded that the evidence obtained was admissible because the searches were within the bounds of acceptable police conduct. The court also determined that the probative value of the evidence outweighed any prejudice to the appellants. Consequently, the applications for leave to appeal were dismissed.

No further orders were made as the appeal was dismissed.

Orders