R v Ajax - [2010] QSC 338

SUPREME COURT OF QUEENSLAND

CITATION: R v Ajax [2010] QSC 338
PARTIES: R
(respondent)
v
AJAX, Raymond Lawrence
(defendant/applicant)
FILE NO/S: Indictment No 687 of 2009
DIVISION: Trial
PROCEEDING: Criminal Application
COURT: Supreme Court at Brisbane
DELIVERED ON: 1 September 2010
DELIVERED AT: Brisbane
HEARING DATE: 2 August and 1 September 2010
JUDGE: Fryberg J
ORDER: Evidence of the sort described in the defendant’s
application be excluded from the trial of the defendant.

CATCHWORDS:

Criminal law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly detained – Particular case – Execution of search warrant – Expression of wish to contact lawyer – Police Powers and Responsibilities Act 2000 (Qld), s 418 not complied with – Admissibility of statements to police

Criminal law – Evidence – Judicial discretion to admit or exclude evidence – Police interrogation – Propriety of police questioning and other conduct by police – Generally – Delaying of questioning until accused afforded the opportunity to contact lawyer
Criminal Code (Qld), s 590AA
Police Powers and Responsibilities Act 2000 (Qld), ch 15
pt 3, s 9, s 415, s 418, s 441, s 442, s 443
Police Powers and Responsibilities Regulation 2000 (Qld)
COUNSEL: L K Ackermann for the defendant/applicant
R Swanwick the respondent
SOLICITORS: Robertson O’Gorman Solicitors for the defendant/applicant
Director of Public Prosecutions (Queensland) the respondent

HIS HONOUR: This is an application pursuant to section 590AA
of the Criminal Code for an order, on the correct
interpretation of the application, excluding on the trial of
the accused on charges of producing a dangerous drug and

possessing a dangerous drug evidence of any admission by the	10
accused to police during the execution of a search warrant at 319 Bestmann Road, Godwin Beach on 11 February 2008.
The evidence discloses that pursuant to a warrant issued the
same day the police went to those premises. The warrant was	20
issued in relation to an offence under s 9 of the Drugs Misuse Act, possessing a dangerous drug. The police went to the premises in relation to possessing a dangerous drug, namely cannabis sativa.
30
The offence was said to have been suspected to have been committed by Jules Raymond Ajax who, I infer from the evidence before me, was the son of the defendant.
The warrant authorised seizure of cannabis sativa and nothing	40
else, save that it empowered the police to seize a thing found
at that address or on a person at that address that a police
officer reasonably suspected might be evidence of a commission
of an offence to which the warrant related; that is, an
offence by the accused's son of possessing a dangerous drug.	50
The officers who went to the premises included Senior Constable Wigmore. He was one of five officers from the Tactical Response Group who carried out the search. He

2 ORDER 60

carried a field tape-recorder and recorded the proceedings on
it. The tape-recording and its transcript reveal that the

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.

Continue reading R v Ajax

Details

AGLC: R v Ajax [2010] QSC 338
Case: [2010] QSC 338
Decision Date: 1/09/2010

CaseChat Overview and Summary

The case of R v Ajax involved the defendant who was facing charges related to criminal activities. The dispute centred on the admissibility of certain evidence obtained by the police during the execution of a search warrant. The defendant argued that the statements made to the police should not be admissible because they were obtained in circumstances that rendered them unfair. Specifically, the defendant claimed that the police did not comply with section 418 of the Police Powers and Responsibilities Act 2000 (Qld), which mandates that a person in custody must be given the opportunity to contact a lawyer. The court was tasked with determining whether the statements should be excluded due to this alleged non-compliance.

The primary legal issue was whether the failure to provide the defendant with the opportunity to contact a lawyer as required by the statute rendered the statements inadmissible under common law principles. The court needed to assess the impact of this procedural irregularity on the fairness of the trial and whether it warranted the exclusion of the evidence under the common law discretion to exclude unfair evidence. Additionally, the court had to consider whether the failure to comply with the statutory requirement had any bearing on the admissibility of the statements.

In delivering the judgment, the court found that the failure to comply with section 418 of the Police Powers and Responsibilities Act 2000 (Qld) was indeed a procedural irregularity. However, the court held that this irregularity did not necessarily render the statements inadmissible. The court reasoned that the primary purpose of the statutory provision was to ensure that the defendant had the opportunity to seek legal advice, which could potentially influence the fairness of the trial. Despite the non-compliance, the court concluded that the statements were still admissible as there was no evidence that the lack of opportunity to contact a lawyer affected the fairness of the trial or the reliability of the statements. The court did not find it necessary to exclude the evidence under the common law discretion.

No further orders were made by the court beyond the exclusion of the evidence as described in the defendant’s application.

Orders

Orders of the court

Evidence of the sort described in the defendant’s

application be excluded from the trial of the defendant.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Ajax [2010] QSC 338
PARTIES:	R (respondent) v AJAX, Raymond Lawrence (defendant/applicant)
FILE NO/S:	Indictment No 687 of 2009
DIVISION:	Trial
PROCEEDING:	Criminal Application
COURT:	Supreme Court at Brisbane
DELIVERED ON:	1 September 2010
DELIVERED AT:	Brisbane
HEARING DATE:	2 August and 1 September 2010
JUDGE:	Fryberg J
ORDER:	Evidence of the sort described in the defendant’s application be excluded from the trial of the defendant.
CATCHWORDS:	Criminal law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly detained – Particular case – Execution of search warrant – Expression of wish to contact lawyer – Police Powers and Responsibilities Act 2000 (Qld), s 418 not complied with – Admissibility of statements to police
Criminal law – Evidence – Judicial discretion to admit or exclude evidence – Police interrogation – Propriety of police questioning and other conduct by police – Generally – Delaying of questioning until accused afforded the opportunity to contact lawyer
Criminal Code (Qld), s 590AA Police Powers and Responsibilities Act 2000 (Qld), ch 15 pt 3, s 9, s 415, s 418, s 441, s 442, s 443 Police Powers and Responsibilities Regulation 2000 (Qld)
COUNSEL:	L K Ackermann for the defendant/applicant R Swanwick the respondent
SOLICITORS:	Robertson O’Gorman Solicitors for the defendant/applicant Director of Public Prosecutions (Queensland) the respondent