R v BXT (No 2) - [2016] QSC 212

SUPREME COURT OF QUEENSLAND

CITATION:

R v BXT (No 2) [2016] QSC 212

PARTIES:

R

(respondent)

v
BXT

(applicant)

FILE NO/S:

Indictment 263/16

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
C (1997) 93 A Crim R 81, cited
Coulstock (1998) 99 A Crim R 143, cited
R v P & anor [2016] QSC 49, cited
Salem (1997) 96 A Crim R 421, 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 the unlawful possession of methylamphetamine in a quantity exceeding two grams, on 5 December 2014.
[1] Indictment 263/16.
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
Early in the morning of 5 December 2014, Constable Turner and Constable Shaw were travelling outbound on Brunswick Street from Fortitude Valley towards New Farm when they saw a black Lexus sedan travelling in the opposite direction along Brunswick Street. They were in a marked police iLoad van, driven by Constable Turner. The vehicle performed a U-turn. At some point its lights and siren were activated; and subsequently the Lexus came to a stop in the vicinity of the Customs House on Queen Street. It was accepted for the applicant that the interception was lawful.
Constable Turner, after a short conversation with the applicant, administered a random breath test and conducted a “pat down” search of the applicant, neither of which produced any result adverse to him.
Shortly after these events, although he had no search warrant, Constable…

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 (No 2)

Details

AGLC: R v BXT (No 2) [2016] QSC 212
Case: [2016] QSC 212
Decision Date: 15 September 2016

CaseChat Overview and Summary

The case of R v BXT (No 2) involved an appeal by the applicant against the admissibility of evidence obtained from a search of his car. The search was conducted by police who had reasonable suspicion that the vehicle contained illegal drugs and possibly other illicit items. The applicant contended that the search was unlawful as the police did not have reasonable grounds for their suspicion. The court was required to determine whether the evidence obtained from the search should be excluded on the basis that it was improperly obtained.

The court considered whether the police officer had acted lawfully and whether they had honestly believed they had reasonable suspicion to conduct the search. The court found that Constable Turner had attempted to act lawfully and honestly believed he had reasonable suspicion as to the presence of drugs and possibly weapons in the car. The court also considered the factors identified in R v P, which generally weighed against the exercise of the discretion to exclude the evidence. The court concluded that Constable Turner had grounds which were reasonable in the circumstances for suspecting that drugs were in the Lexus when it was intercepted.

The court held that the search of the Lexus conducted on 5 December 2014 was lawful, and that the evidence resulting from it was obtained lawfully. Therefore, the application was dismissed. The court did not find it necessary to exercise the discretion to exclude the evidence as the search was lawful and the evidence obtained was not improperly obtained.

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

It is at this point convenient to refer more fully to the evidence in this case.Additional evidence Constable Turner provided a statement under s 110A(6C)(c) of the Justices Act 1886 (Qld), dated 24 June 2015[6]. In that statement he said that when he first observed the Lexus on Brunswick Street, Constable Shaw performed a check on the registration of this vehicle. Constable Shaw then informed Constable Turner that “the vehicle had been flagged for previous activity involving the trafficking of dangerous drugs, namely methylamphetamine”[7].[6] Exhibit 1.[7] Exhibit 1 para 7. Shortly afterwards, according to the statement, the police vehicle took up a position a short distance behind the Lexus, at which point Constable Turner activated its lights and siren. This occurred at the intersection of Ann Street and Gipps Street. The Lexus did not stop, and continued to travel on Ann Street, and then into Queen Street, coming to a halt adjacent to the Customs House, at a point approximately 350 metres past the point where the lights and siren had been activated. The statement records that Constable Turner then spoke to the applicant. The applicant’s hands were visibly shaking on the steering wheel of the Lexus, despite it being a warm night. Constable Turner asked the applicant why he did not stop when the lights and siren were activated, to which the applicant said, “I didn’t see any safe place to stop”. Constable Turner then said “You have passed more than ten legal parking spaces on the way to this location and have now parked illegally in a bus zone.” Constable Turner then said, “Why are you shaking? Is there something in the car that shouldn’t be?” The applicant replied “I am not shaking”. The statement recorded that Constable Turner then observed that the applicant’s forehead was beaded with sweat, and formed a suspicion that dangerous drugs or other illicit items were in the vehicle. At that point he activated both his audio recorder and his video recorder. In his oral evidence, Constable Turner said that the Lexus appeared to be speeding when it was first seen on Brunswick Street. Constable Shaw carried out a check on the police QLite system, using an iPad. Constable Turner said that the lights and siren were activated at a point on Ann Street after Gipps Street, and near Gotha St. The lights were a rotating light on the top of the police vehicle, and the lights at the front of the police vehicle blinked on and off alternately. The Lexus slowed down in Queen Street, but continued as far as the Customs House. He gave evidence that he thought the driver of the vehicle was “secreting” items, and that he could see the silhouette moving. When the police vehicle stopped behind the Lexus, Constable Shaw showed Constable Turner the results of the QLite system, which referred to a methylamphetamine supplier, and possession of a sawn-off shotgun; and the applicant having a handgun strapped to his leg, giving a false name, and running from the police. Another person associated with the vehicle may have been involved with drug trafficking. Constable Turner and Constable Shaw then got out of the police vehicle.

Decision

Reasons for decision

Had it been necessary to consider whether to exercise the discretion discussed in Bunning v Cross, I would have accepted the submission for the respondent that Constable Turner had attempted to act lawfully, and honestly believed that he had a reasonable suspicion as to the presence of drugs, and possibly weapons, in the car; notwithstanding that the grounds were not sufficient to provide a reasonable basis for that suspicion. I would also have considered that the other factors identified in R v P generally weighed against the exercise of the discretion to exclude the evidence.Conclusion I am satisfied Constable Turner had grounds which were reasonable in the circumstance for suspecting that drugs were in the Lexus when it was intercepted on 5 December 2014. 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 (No 2) [2016] QSC 212
PARTIES:	R (respondent) v BXT (applicant)
FILE NO/S:	Indictment 263/16
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 C (1997) 93 A Crim R 81, cited Coulstock (1998) 99 A Crim R 143, cited R v P & anor [2016] QSC 49, cited Salem (1997) 96 A Crim R 421, cited
COUNSEL:	M Copley QC for the applicant J Robson for the respondent
SOLICITORS:	Mulcahy Ryan Lawyers for the applicant ODPP for the respondent