R v Dang; R v Duong - [2015] QSC 377

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dang; R v Duong [2015] QSC 377

PARTIES:

R

(respondent)

v
STEVEN DANG

(applicant)

R
(respondent)
v
PHILLIP THAI TRUNG DUONG
(applicant)

FILE NO/S:

Indictment No 439 of 2014
Indictment No 441 of 2014

DIVISION:

Trial Division

PROCEEDING:

Applications for pre-trial rulings

DELIVERED ON:

28 August 2015

DELIVERED AT:

Brisbane

HEARING DATE:

24 July 2015 and 26 August 2015

JUDGE:

Mullins J

ORDER:

In each matter:
Application to exclude evidence seized in the search conducted by the police on 4 September 2013 at Harvey Place, Calamvale is refused.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – WARRANTS – SEARCH WARRANTS – OTHER MATTERS – where police had obtained a search warrant for the defendant at a former address – where search warrant was to be executed at the same time as search warrants for eight other targets in the same operation – where defendant’s car located at another address – where police erroneously believed they had been seen near the new address by a person driving the defendant’s car – where police decided to do an emergent search – where the police waited for additional officers to arrive before entering and searching the defendant’s new address – whether there were grounds for an emergent search – whether the emergent search was required immediately to avoid loss of evidence

Police Powers and Responsibilities Act 2000 (Qld), s 160, s 800

Bunning v Cross (1978) 141 CLR 54, followed
R v Milos [2014] QCA 314, considered
R v Versac [2013] QSC 46, considered
R v Williamson [2009] QSC 434, considered

COUNSEL:

R A Swanwick for the respondent

J Jacob for the applicant Dang
C L Hughes QC and J Fenton for the applicant Duong

SOLICITORS:

Director of Public Prosecutions (Queensland) for the respondent

Lawler Magill for the applicant Dang
A W Bale & Son for the applicant Duong

Each applicant applies for a ruling to exclude the evidence seized as a result of an emergent search conducted by the police at 10:05pm on 4 September 2013 at an address in Harvey Place, Calamvale where both applicants were present. Each applicant also sought exclusion of a field record of interview between that applicant and police that was recorded during the search. Mr Swanwick of counsel conceded at the outset of the hearing of the application that the prosecution would not be relying at trial on those field records of interview. The prosecution bears the onus of proving on the balance of probabilities that the emergent search was lawful.
The indictment presented in this Court against the applicant Dang charges him with trafficking in methylamphetamine and heroin between 30 June and 5 September 2013, possession of methylamphetamine where the quantity exceeded 200 grams, possession of MDMA and heroin where in each case the quantity exceeded 2 grams, possession of cannabis and alprazolam, possessing a sum of money obtained from trafficking, and possessing things used in connection with…

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.

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Details

Case: [2015] QSC 377
Decision Date: 28 August 2015

CaseChat Overview and Summary

The applicants, Dang and Duong, were facing charges related to drug trafficking and possession. The case involved the legality of a search conducted by police at a new address, Harvey Place in Calamvale, rather than the original address specified in the search warrant for Dang. The primary legal issues were whether the emergent search conducted by police at the new address was justified and whether the emergent search was necessary to prevent the immediate loss of evidence. The applicants argued that the police lacked the necessary grounds for an emergent search and that the search at the new address should be excluded as evidence.

The Court considered the circumstances leading up to the emergent search. The police had initially planned to execute search warrants simultaneously for nine targets, including Dang, at their respective addresses. However, Dang's car was found at a different address in Harvey Place, leading the police to believe they had been seen near this location by a person driving Dang’s car. This prompted the police to conduct an emergent search. Although there were discrepancies in the testimonies of the officers involved regarding the exact events leading up to the search, the Court found no evidence of any sinister motives behind these discrepancies. The Court noted that the officers proceeded with the emergent search without significant concern, and Detective Green later obtained a post-search approval order from the Magistrate, indicating that the emergent search was considered justified under the circumstances.

The Court ultimately concluded that the emergent search was justified and that there were grounds for it. The evidence obtained during the search was not excluded, and the applications to exclude the evidence were refused. The reasoning focused on the police's belief, based on intercepted communications and the presence of Dang’s car at the new location, that an emergent search was necessary to prevent the immediate loss of evidence. The Court found that the emergent search was conducted in good faith and within the legal framework provided by the post-search approval order.

Orders

Orders of the court

In each matter:

Application to exclude evidence seized in the search conducted by the police on 4 September 2013 at Harvey Place, Calamvale is refused.

Background

Background to the litigation

The indictment presented in this Court against the applicant Duong charges him with possession of methylamphetamine and cocaine where in each case the quantity exceeded 2 grams, possession of MDMA, paramethoxymethanphetamine and heroin, and receiving a sum of money obtained from trafficking. Background A police operation in which the applicant Dang was a target was due to be closed on 4 September 2013. Nine targeted persons, including Dang, were to be arrested on that day. Search warrants were obtained from the Magistrate at Holland Park by Senior Constable Dwyer in relation to the targets. The search warrant for Dang was in respect of an address at Camira which was believed to be the address of Dang. The offences for which the warrant was issued were trafficking in the dangerous drug methylamphetamine between 26 June and 5 September 2013 and unlawful possession of methylamphetamine on 4 September 2013. There was a briefing at Dutton Park Police Station about 5pm for all the police officers involved in the closure of the operation. Detective Senior Constable Green was given the task of executing the search warrant at Dang’s address. There were at least three other officers involved in assisting her: Detective Sergeant Kempton, Detective Senior Constable Malcolm and Senior Constable Purcell. The warrants for all the targets were to be executed simultaneously. Detective Green had information that Dang’s telephones were in the Calamvale area. The address at Camira on the search warrant was in darkness when she attended with Officer Purcell and she decided not to execute the search warrant. Detective Green then obtained information that Dang was living at an address in Calamvale. Detectives Green and Purcell drove to Calamvale to see if they could locate Dang’s car. Detective Kempton was then provided the precise address in Harvey Place that was an address of interest for Dang and Detectives Kempton and Malcolm located one of Dang’s cars, a black Honda Jazz, at the relevant address in Harvey Place and telephoned Detective Green at 9:05pm. Detective Green was aware of information from telephone intercepts that suggested that on 4 September 2013 Dang had received a very large quantity of drugs. What happened at Calamvale There are discrepancies in the evidence of Detective Green and Officer Purcell who were in one vehicle compared with the evidence of Detectives Kempton and Malcolm who were in the other vehicle about the detail of what occurred at the time when Detectives Kempton and Malcolm first took up a position in Stockton Street. I am unpersuaded that there was any sinister reason for these discrepancies. The events that preceded the search were not significant for the police officers, as it is apparent from what they said and how they gave their evidence about the events that it was unremarkable for them that they did proceed in the circumstances to do an emergent search. That was particularly as Detective Green obtained a post-search approval order from the Magistrate at Holland Park for the emergent search conducted at the Harvey Place address. Statements were not obtained from the police officers on the circumstances that resulted in the emergent search until some weeks before the hearing of this application.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Dang; R v Duong [2015] QSC 377
PARTIES:	R (respondent) v STEVEN DANG (applicant) R (respondent) v PHILLIP THAI TRUNG DUONG (applicant)
FILE NO/S:	Indictment No 439 of 2014 Indictment No 441 of 2014
DIVISION:	Trial Division
PROCEEDING:	Applications for pre-trial rulings
DELIVERED ON:	28 August 2015
DELIVERED AT:	Brisbane
HEARING DATE:	24 July 2015 and 26 August 2015
JUDGE:	Mullins J
ORDER:	In each matter: Application to exclude evidence seized in the search conducted by the police on 4 September 2013 at Harvey Place, Calamvale is refused.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – WARRANTS – SEARCH WARRANTS – OTHER MATTERS – where police had obtained a search warrant for the defendant at a former address – where search warrant was to be executed at the same time as search warrants for eight other targets in the same operation – where defendant’s car located at another address – where police erroneously believed they had been seen near the new address by a person driving the defendant’s car – where police decided to do an emergent search – where the police waited for additional officers to arrive before entering and searching the defendant’s new address – whether there were grounds for an emergent search – whether the emergent search was required immediately to avoid loss of evidence Police Powers and Responsibilities Act 2000 (Qld), s 160, s 800 Bunning v Cross (1978) 141 CLR 54, followed R v Milos [2014] QCA 314, considered R v Versac [2013] QSC 46, considered R v Williamson [2009] QSC 434, considered
COUNSEL:	R A Swanwick for the respondent J Jacob for the applicant Dang C L Hughes QC and J Fenton for the applicant Duong
SOLICITORS:	Director of Public Prosecutions (Queensland) for the respondent Lawler Magill for the applicant Dang A W Bale & Son for the applicant Duong