R v Barbaro - [2015] QSC 346

SUPREME COURT OF QUEENSLAND

CITATION:

R v Barbaro & Anor [2015] QSC 346

PARTIES:

THE QUEEN

(respondent)

v
ROSSARIO DOM BARBARO
(first applicant)
and
CHRISTOS PANAGAKOS
(second applicant)

FILE NO:

679 of 2015

DIVISION:

Trial Division

PROCEEDING:

Section 590AA Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

4 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2015

JUDGE:

Daubney J

ORDERS:

The evidence obtained against the first applicant and second applicant in the search of a blue Hyundai motor vehicle, registration number 912 SUF, on 27 June 2014 is to be excluded.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – ILLEGALLY OBTAINED EVIDENCE – GENERALLY – where the first applicant and second applicant were charged with possession of a dangerous drug in excess of 2.0 grams – where police officers conducted an unlawful search of the subject vehicle – where there was no consent to the search of the subject vehicle – where the police officers conducting the search of the subject vehicle believed they were entitled to search the subject vehicle pursuant to section 31 and section 32 of the Police Powers and Responsibilities Act 2000 (Qld) – where no warrant was obtained by police officers – where no post-search approval was obtained by police officers – whether the unlawful search of the subject vehicle by police officers was within the parameters of the Police Powers and Responsibilities Act 2000 (Qld) – whether the court’s discretion should be exercised to exclude the evidence

Police Powers and Responsibilities Act 2000 (Qld) ss 31 and 32

Bunning v Cross (1978) 141 CLR 54
R v Keen [2015] QSC 7
R v Pohl [2014] QSC 173
The Queen v Ireland (1970) 126 CLR 321
R v Toon [2015] QSC 117
R v Versac [2013] QSC 46

COUNSEL:

S Lynch for the first applicant

R Frigo for the second applicant
C Wallis for the respondent

SOLICITORS:

Moloney MacCallum Lawyers for the first applicant

Potts Lawyers for the second applicant
Director of Public Prosecutions (Qld) for the respondent

The first applicant, Rossario Dom Barbaro (“Barbaro”), and the second applicant, Christos Panagakos (“Panagakos”) have been jointly charged with possessing the dangerous drug methylamphetamine in a quantity in excess of two grams. Panagakos has also been charged with other counts, which are not relevant for present purposes.
Each applicant has now applied for an order that evidence obtained as a result of the search by police on 27 June 2014 of the vehicle in which the methylamphetamine was allegedly found be excluded from the case against them.
On 27 June 2014, Barbaro was under surveillance by Queensland Police. He was wanted by police in connection with three outstanding warrants in Queensland. It was known by Queensland Police that he was to attend at the Tweed Heads Police Station in New South Wales in relation to other matters on that day.
As a consequence, Detective Senior Constable Foster (“Foster”) of the Queensland Police went to 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 Barbaro

Details

AGLC: R v Barbaro [2015] QSC 346
Case: [2015] QSC 346
Decision Date: 4 December 2015

CaseChat Overview and Summary

In the matter of R v Barbaro, the applicants were charged with possession of a dangerous drug in excess of 2.0 grams. The central dispute revolves around the legality of the search that led to the discovery of the drug. The Queensland Court of Appeal was tasked with determining whether the search was conducted in accordance with the Police Powers and Responsibilities Act 2000 (Qld). The police officers involved conducted the search without consent, relying on sections 31 and 32 of the Act, but without obtaining a warrant or post-search approval.

The key legal issues for the court to decide were whether the search was lawful under the Police Powers and Responsibilities Act 2000 (Qld) and if the court should exercise its discretion to exclude the evidence obtained from the unlawful search. The court considered whether the officers had a reasonable belief they were authorised to conduct the search and whether the search complied with statutory requirements. The applicants argued that the evidence obtained from the unlawful search should be excluded as it was obtained in violation of their rights under the Act.

The court held that the search was unlawful as it did not comply with the statutory requirements for warrantless searches. The officers did not have a reasonable belief that they were authorised to conduct the search without a warrant or post-search approval. The court exercised its discretion to exclude the evidence obtained from the unlawful search, finding that the illegally obtained evidence was prejudicial and could result in a miscarriage of justice. The court's decision was based on the importance of upholding the integrity of the legal process and ensuring that evidence obtained through unlawful means is not used against the accused.

Orders

Orders of the court

The evidence obtained against the first applicant and second applicant in the search of a blue Hyundai motor vehicle, registration number 912 SUF, on 27 June 2014 is to be excluded.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Barbaro & Anor [2015] QSC 346
PARTIES:	THE QUEEN (respondent) v ROSSARIO DOM BARBARO (first applicant) and CHRISTOS PANAGAKOS (second applicant)
FILE NO:	679 of 2015
DIVISION:	Trial Division
PROCEEDING:	Section 590AA Application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	4 December 2015
DELIVERED AT:	Brisbane
HEARING DATE:	23 November 2015
JUDGE:	Daubney J
ORDERS:	The evidence obtained against the first applicant and second applicant in the search of a blue Hyundai motor vehicle, registration number 912 SUF, on 27 June 2014 is to be excluded.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – ILLEGALLY OBTAINED EVIDENCE – GENERALLY – where the first applicant and second applicant were charged with possession of a dangerous drug in excess of 2.0 grams – where police officers conducted an unlawful search of the subject vehicle – where there was no consent to the search of the subject vehicle – where the police officers conducting the search of the subject vehicle believed they were entitled to search the subject vehicle pursuant to section 31 and section 32 of the Police Powers and Responsibilities Act 2000 (Qld) – where no warrant was obtained by police officers – where no post-search approval was obtained by police officers – whether the unlawful search of the subject vehicle by police officers was within the parameters of the Police Powers and Responsibilities Act 2000 (Qld) – whether the court’s discretion should be exercised to exclude the evidence Police Powers and Responsibilities Act 2000 (Qld) ss 31 and 32 Bunning v Cross (1978) 141 CLR 54 R v Keen [2015] QSC 7 R v Pohl [2014] QSC 173 The Queen v Ireland (1970) 126 CLR 321 R v Toon [2015] QSC 117 R v Versac [2013] QSC 46
COUNSEL:	S Lynch for the first applicant R Frigo for the second applicant C Wallis for the respondent
SOLICITORS:	Moloney MacCallum Lawyers for the first applicant Potts Lawyers for the second applicant Director of Public Prosecutions (Qld) for the respondent