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 46COUNSEL:
S Lynch for the first applicant
R Frigo for the second applicant
C Wallis for the respondentSOLICITORS:
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…
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- AGLC
- R v Barbaro [2015] QSC 346
- Case
- [2015] QSC 346
- Decision Date
CaseChat Overview and Summary
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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