R v Cahill - [2016] QSC 275

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cahill [2016] QSC 275

PARTIES:

R
v
CAHILL, Colin Mark

(applicant)

FILE NO/S:

Indictment No 47 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Toowoomba

DELIVERED ON:

24 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

27 October 2016

JUDGE:

Peter Lyons J

ORDER:

Application 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 s 31 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 police officer did not expressly detain the vehicle and its occupants – where the search was accordingly unlawful unless the occupants of the vehicle consented – whether the police officer obtained the consent of the occupants of the vehicle before commencing the search

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 applicant was subsequently arrested and searched – where a mobile phone was seized and searched - where police have a power under s 365 of the PPRA to arrest without a warrant – where police have a power under s 443 of the PPRA to search a person in custody – whether, assuming the search of the vehicle was unlawful, the arrest and seizure of the mobile phone was unlawful so that a discretion arose to exclude the evidence

Police Powers and Responsibilities Act 2000 (Qld), s 31, s 365, s 442, s 443, s 618, s 619, sch 6

Criminal Code (Qld), s 679

Bunning v Cross (1978) 141 CLR 54
Cleland v The Queen (1982) 151 CLR 1
George v Rockett (1990) 170 CLR 104
MacPherson v The Queen (1981) 147 CLR 512
R v Bossley [2012] QSC 292
R v Keen [2015] QSC 7
R v Nguyen (2015) 248 A Crim R 398
The Queen v Ireland (1970) 126 CLR 321

Wendo v The Queen (1963) 109 CLR 559

COUNSEL:

A J Kimmins for the applicant

S Petrie for the respondent

SOLICITORS:

Anderson Fredericks Turner for the applicant

Director of Public Prosecutions (Queensland) for the respondent

Late on the evening of 3 April 2015, police stopped a motor vehicle in which the applicant was travelling, and conducted a search. A small quantity of methylamphetamine was found in the applicant’s wallet, and some drug-related paraphernalia was found in the car. The applicant was arrested, and his mobile phone was seized and searched. As a result the applicant was charged with unlawfully trafficking in drugs.
The applicant has applied for an order excluding the evidence of the searches and their results.

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 Cahill

Details

AGLC: R v Cahill [2016] QSC 275
Case: [2016] QSC 275
Decision Date: 24 November 2016

CaseChat Overview and Summary

The case of R v Cahill involved an applicant seeking to exclude evidence obtained from searches of his vehicle and person by police. The searches led to the discovery of illegal drugs and a mobile phone which, upon analysis, revealed hundreds of messages relating to drug supply. The applicant argued that the evidence should be excluded because the initial search of his vehicle was unlawful as it was not consented to by him or his driver, Mr Merrett. Additionally, he claimed that his arrest and the subsequent search of his mobile phone were unlawful. The court was required to decide whether the evidence should be excluded under the judicial discretion to admit or exclude evidence, particularly if it was found to be improperly obtained or unfair to admit.

The court examined the powers of the police under the Police Powers and Responsibilities Act 2000 (Qld) to conduct warrantless searches and arrests. It considered whether Constable Heptinstall had obtained valid consent from the occupants of the vehicle before the search. The court noted that the body-worn camera footage, which was incomplete, did not provide clear evidence of the consent being obtained. Despite this, the court reasoned that the applicant's consent to the search, as testified by Constable Heptinstall, was sufficient to render the search lawful. The court further held that even if the vehicle search was unlawful, the subsequent arrest and search of the applicant's mobile phone were lawful as they were conducted under the appropriate statutory powers. The court concluded that there was no valid basis to exclude the evidence obtained from the searches.

In light of the above, the court dismissed the applicant's application to exclude the evidence. The reasoning was that the unlawfulness of the initial vehicle search did not render the subsequent arrest and search of the mobile phone unlawful. The court found no grounds for excluding the evidence, particularly the contents of the mobile phone, as there was no suggestion of procedural unfairness or violation of legal rights. Consequently, the application was dismissed, and the evidence obtained from the searches was deemed admissible in the proceedings against the applicant.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

The applicant has applied for an order excluding the evidence of the searches and their results.Further facts On the evening of 3 April 2015, Constable Heptinstall was driving a police vehicle on North Street, Toowoomba, carrying out patrol duties. She was accompanied by Senior Constable Turner. She saw a silver-coloured sedan, and then activated the lights on the police vehicle, for the purpose of conducting a random breath test. The silver sedan pulled into the car park of Wilsonton State High School. Constable Heptinstall left the police vehicle and approached the silver sedan. There were two occupants of the sedan. It was driven by Mr Merrett, with the applicant being a passenger in the vehicle. The vehicle was owned by Mr Merrett’s partner. As she approached the silver sedan, Constable Heptinstall activated her body-worn camera. After a time, the camera ceased recording. Subsequently, Constable Heptinstall reactivated the camera. Senior Constable Turner obtained Mr Merrett’s licence, and gave it to Constable Heptinstall. She returned to the police vehicle for the purpose of carrying out a licence check. It was at about this time that the camera stopped recording. Constable Heptinstall gave evidence of observations she made up to this point of Mr Merrett and the applicant, and that she formed what she described as a reasonable suspicion that the vehicle might contain drugs. After conveying the results of the licence check to Senior Constable Turner, Constable Heptinstall gave evidence that she asked both the applicant and Mr Merrett if they would consent to a voluntary search of the vehicle, to which they agreed. The vehicle was searched, resulting in the location of the items previously mentioned in the vehicle. At some point, the camera again commenced to record events. Constable Heptinstall advised the applicant of his rights and questioned him in relation to the items found in the vehicle. She then arrested the applicant. By that time, Senior Constable Dolley had arrived, and he assisted Constable Heptinstall with both the search of the vehicle, and a “pat down” search of the applicant after his arrest. A mobile phone was found on the applicant in the course of the latter search. The applicant was taken to the Toowoomba Watch House. Constable Heptinstall gave evidence that she formed a reasonable suspicion that the applicant might be using his mobile phone to sell drugs. She seized the mobile phone from him, and observed several messages indicating the phone was being used for the purpose of selling drugs. She then arranged to have the messages on the phone downloaded. The written submissions for the respondent stated, without objection, that later analysis of the contents of the phone revealed hundreds of messages relating to the supply of drugs, from 2 October 2014 to 3 April 2015. Constable Heptinstall provided a statement relating to these events which was dated 17 March 2016. As a result of contact from a police prosecutor, she provided an addendum statement dated 18 July 2016. On 26 October 2016 notes were prepared in the course of a conference before the hearing of the application, which Constable Heptinstall initialled and adopted as accurate.Contentions

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Accordingly, were it necessary to do so, I would have found that the (assumed) unlawfulness of the search did not mean that the consequent arrest of the applicant was unlawful; and accordingly that the exercise of the powers resulting in the analysis of the contents of the mobile phone was also lawful. No recognisable basis for excluding the evidence in such circumstances was identified on behalf of the applicant. Accordingly, I would have refused the application in those circumstances, at least in relation to the contents of the mobile phone.Conclusion The application should be dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Cahill [2016] QSC 275
PARTIES:	R v CAHILL, Colin Mark (applicant)
FILE NO/S:	Indictment No 47 of 2016
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Toowoomba
DELIVERED ON:	24 November 2016
DELIVERED AT:	Brisbane
HEARING DATE:	27 October 2016
JUDGE:	Peter Lyons J
ORDER:	Application 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 s 31 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 police officer did not expressly detain the vehicle and its occupants – where the search was accordingly unlawful unless the occupants of the vehicle consented – whether the police officer obtained the consent of the occupants of the vehicle before commencing the search 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 applicant was subsequently arrested and searched – where a mobile phone was seized and searched - where police have a power under s 365 of the PPRA to arrest without a warrant – where police have a power under s 443 of the PPRA to search a person in custody – whether, assuming the search of the vehicle was unlawful, the arrest and seizure of the mobile phone was unlawful so that a discretion arose to exclude the evidence Police Powers and Responsibilities Act 2000 (Qld), s 31, s 365, s 442, s 443, s 618, s 619, sch 6 Criminal Code (Qld), s 679 Bunning v Cross (1978) 141 CLR 54 Cleland v The Queen (1982) 151 CLR 1 George v Rockett (1990) 170 CLR 104 MacPherson v The Queen (1981) 147 CLR 512 R v Bossley [2012] QSC 292 R v Keen [2015] QSC 7 R v Nguyen (2015) 248 A Crim R 398 The Queen v Ireland (1970) 126 CLR 321 Wendo v The Queen (1963) 109 CLR 559
COUNSEL:	A J Kimmins for the applicant S Petrie for the respondent
SOLICITORS:	Anderson Fredericks Turner for the applicant Director of Public Prosecutions (Queensland) for the respondent