R v BXT - [2016] QSC 211

SUPREME COURT OF QUEENSLAND

CITATION:

R v BXT [2016] QSC 211

PARTIES:

R

(respondent)

v
BXT

(applicant)

FILE NO/S:

Indictment 259/16

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

5 September 2016

JUDGE:

Peter Lyons J

ORDER:

The application is dismissed.

CATCHWORDS:

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - where the applicant’s car was searched by police – where illegal drugs and other items were located – where police have a power under ss 31 and 32 of the Police Powers and Responsibilities Act 2000 (Qld) (“PPRA”) to search vehicles without a warrant if they have a reasonable suspicion that prescribed circumstances exist – where the applicant alleges that the police officer did not have reasonable grounds for the suspicion and the search was therefore unlawful – whether the evidence resulting from the search should be excluded on the basis that it was improperly obtained

Justices Act 1886 (Qld) s 110A(6C)(c)
Police Powers and Responsibilities Act 2000 (Qld) ss 31, 32, sch 6

Bunning v Cross (1978) 141 CLR 54, cited

R v P [2016] QSC 49, cited
R v Versac (2013) 227 HMR 569, cited

COUNSEL:

M Copley QC for the applicant

J Robson for the respondent

SOLICITORS:

Mulcahy Ryan Lawyers for the applicant

ODPP for the respondent

The applicant is charged on indictment[1] with unlawful possession of methylamphetamine in a quantity exceeding two grams, and other offences, on 8 July 2015.
[1] Indictment 259/16.
The charge arises out of a search of a vehicle driven by the applicant, conducted on the date which appears in the indictment. The applicant has applied for the exclusion of evidence resulting from the search, on the ground that, it not being shown that the search was lawful, evidence resulting from it should be excluded in the exercise of the discretion referred to in Bunning v Cross[2].
[2] (1978) 141 CLR 54.
Factual overview
At about 1.00 am on Wednesday, 8 July 2015 the applicant was driving a white Lexus sedan inbound on Ann Street, Fortitude Valley, in the vicinity of its intersection with Constance Street. A police vehicle driven by Constable Scott, in which Constable Peers was a passenger, was then stationary in Constance Street facing the traffic lights at the intersection. The police vehicle followed the Lexus, both vehicles turning into Ballow Street. Towards the end of the street, the Lexus stopped, and the applicant and his passenger got out of the vehicle.
Constable Scott asked the applicant for his driver's licence, which was not produced. At this point, they were on the footpath, to the passenger’s side of the Lexus. Constable Peers had approached the driver’s door of that vehicle and observed something on the floor. He summoned the applicant, who reached into the car and retrieved a wallet which contained his licence.
Shortly afterwards, Constable Peers…

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 BXT

Details

AGLC: R v BXT [2016] QSC 211
Case: [2016] QSC 211
Decision Date: 15 September 2016

CaseChat Overview and Summary

The case of R v BXT involved the applicant challenging the admissibility of evidence obtained from a search of his vehicle conducted by police. The applicant alleged that the police officer did not have reasonable grounds for the suspicion that led to the search, making it unlawful. The dispute reached the court, which had to decide on the legality of the search and the admissibility of the evidence obtained. The Police Powers and Responsibilities Act 2000 (Qld) provided the legal framework, allowing police to search vehicles without a warrant if they had reasonable suspicion of prescribed circumstances.

The court needed to determine whether the police officer's suspicion was reasonable, thereby validating the search and the evidence obtained. Additionally, the court had to consider the discretion to exclude evidence that was unfairly obtained or improperly procured. This discretion is particularly pertinent when there is evidence of serious impropriety by the police. The court was tasked with weighing the seriousness of any alleged impropriety against the need to admit evidence that could be crucial in a criminal case.

In its reasoning, the court found that the police officer did indeed have reasonable grounds for suspecting that drugs were present in the vehicle when it was intercepted. The evidence presented by the officer was deemed credible and sufficient to justify the search. Consequently, the search was considered lawful, and the evidence obtained from it was admissible. The court dismissed the application to exclude the evidence, concluding that the search was conducted within the bounds of the law and the evidence was properly obtained. The court's decision upheld the admissibility of the evidence, and the application was dismissed as a result.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Had it become necessary to consider the discretion in Bunning v Cross, that would have been as a consequence of the rejection of the evidence of Constable Peers about the presence of the orange bag, and the attempts by the applicant to conceal it; and on the basis that he had contrived evidence about information from the police computer system. It seems to me that such conduct, if it were found, should be regarded as a serious impropriety, strongly favouring the exercise of a discretion by excluding evidence resulting from a search.Conclusion I am satisfied Constable Peers had grounds which were reasonable in the circumstances for suspecting that drugs were in the Lexus when it was intercepted on 8 July 2015. It follows that the search of the Lexus conducted on that date was lawful, and that the evidence resulting from it was obtained lawfully. I dismiss the application.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v BXT [2016] QSC 211
PARTIES:	R (respondent) v BXT (applicant)
FILE NO/S:	Indictment 259/16
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	15 September 2016
DELIVERED AT:	Brisbane
HEARING DATE:	5 September 2016
JUDGE:	Peter Lyons J
ORDER:	The application is dismissed.
CATCHWORDS:	CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - where the applicant’s car was searched by police – where illegal drugs and other items were located – where police have a power under ss 31 and 32 of the Police Powers and Responsibilities Act 2000 (Qld) (“PPRA”) to search vehicles without a warrant if they have a reasonable suspicion that prescribed circumstances exist – where the applicant alleges that the police officer did not have reasonable grounds for the suspicion and the search was therefore unlawful – whether the evidence resulting from the search should be excluded on the basis that it was improperly obtained Justices Act 1886 (Qld) s 110A(6C)(c) Police Powers and Responsibilities Act 2000 (Qld) ss 31, 32, sch 6 Bunning v Cross (1978) 141 CLR 54, cited R v P [2016] QSC 49, cited R v Versac (2013) 227 HMR 569, cited
COUNSEL:	M Copley QC for the applicant J Robson for the respondent
SOLICITORS:	Mulcahy Ryan Lawyers for the applicant ODPP for the respondent