R v Duncan - [2024] QSCPR 24

SUPREME COURT OF QUEENSLAND

CITATION: R v Duncan [2024] QSCPR 24
PARTIES: THE KING
(respondent)
v
MAUREEN ELIZABETH LINDSAY DUNCAN
(applicant)
FILE NO/S: 677/24
DIVISION: Trial
PROCEEDING: Application
ORIGINATING Supreme Court of Queensland
COURT:
DELIVERED ON: 6 September 2024
DELIVERED AT: Cairns
HEARING DATE: 25 July 2024
JUDGE: Henry J
ORDER: Application dismissed
CATCHWORDS: CRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – SEARCH AND SEIZURE – where the applicant filed an application pursuant to s 590AA Criminal Code to exclude evidence found in a search – where police received credible information that a male suspect was driving dangerous drugs from Brisbane to Cairns in an utility vehicle – where police commenced operating a roadside random breath test and licence interception site to catch suspect vehicle – where applicant was pulled over for a licence check and breath test, pursuant to s 60 Police Powers and Responsibilities Act – where police noticed the male suspect was the passenger in the applicant’s vehicle and then exercised their powers to detain both the occupants and the vehicle and search the vehicle, pursuant to s 31 PPRA – where police located 60 grams of dangerous drugs – where the applicant contends the vehicle was stopped for an improper purpose – whether the stopping of the vehicle was unlawful – whether the evidence ought to be excluded
Drugs Misuse Act 1986 (Qld)
Human Rights Act 2019 (Qld) ss 19, 25, 29
Police Powers and Responsibilities Act 2000 (Qld) ss 31, 32,
60
Road Traffic Act 1961 (SA) s 42
Traffic Act 1949 (Qld) ss 16A, 39
Deputy Commissioner of Taxation v De Vonk (1995) 61 FCR
564, cited
Garrow v Platsis [1989] 1 Qd R 154, followed
Lovegrove v Spangler (1988) 8 MVR 104, cited
O’Reilly v State Bank of Victoria Commissioners (1982) 153
CLR 1, cited
R v Davis [2023] QSC 112, not applied
R v Fuentes [2012] QSC 288, cited
R v Keen [2016] 2 Qd R 1, cited
R v Wassmuth; Ex parte Director of Public Prosecutions
(2011) 11 QR 82, cited
Swan Hill Corporation v Bradbury (1937) 56 CLR 746, cited
Police (SA) v Prinse (1998) 27 MVR 50, discussed

COUNSEL: A Edwards KC, with M Harrison, for applicant
N Crane, with T Watkins, for respondent
SOLICITORS: Owens & Associates for applicant
Director of Public Prosecutions (Queensland) for the
respondent

Maureen Duncan is charged with the aggravated possession of 60 grams of cocaine found in a police search of a vehicle she was driving on 12 July 2023. She applies for the exclusion of evidence derived from the search.[1]
[1] The indictment before the court also charges Ms Duncan with the simpliciter possession of diazepam which was presumably also found in the search. Its finding attracted no attention in the evidence or submissions advanced in the present application.
Ms Duncan argues the search was illegal because it resulted from the unlawful stopping of her vehicle by police. It is alleged, the stopping…

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 Duncan

Details

AGLC: R v Duncan [2024] QSCPR 24
Case: [2024] QSCPR 24
Decision Date: 6 September 2024

CaseChat Overview and Summary

The case of R v Duncan was heard in a court where the central dispute was the legality of a vehicle stop and subsequent search carried out by law enforcement officers. The defendant, Duncan, contested the admissibility of evidence obtained during the stop and search, questioning the validity of the officers' actions under the Police Powers and Responsibilities Act. The court was tasked with determining whether the officers' actions were justified under the relevant legislation and if the evidence obtained should be excluded due to any procedural irregularities.

The legal issues before the court included whether the initial vehicle stop was lawful under section 60 of the Police Powers and Responsibilities Act and whether the subsequent detention and search of a passenger were justified under section 31 of the same Act. The court also considered whether the officers' actions were in accordance with the defendant's rights under the Human Rights Act 2019 (Qld), specifically the rights to free movement, privacy, liberty, and security. However, neither party argued that these human rights were relevant to the interpretation of the Police Powers and Responsibilities Act or that the statutory provisions exceeded reasonable and justifiable limits in relation to those rights.

In reaching its decision, the court concluded that the vehicle stop was lawfully performed under section 60 of the Police Powers and Responsibilities Act. The court found that the recognition of a passenger, who appeared to be an individual named Kubler, provided the necessary reasonable suspicion required by section 31 of the Act. Consequently, the evidence obtained during the detention and search was deemed lawfully obtained. The court did not find it necessary to consider whether, in the hypothetical event of a contrary finding, the evidence would be admissible, as such an exercise would require knowing the reasons for that finding to properly weigh the discretionary considerations.

As a result of these findings, the application to exclude the evidence was dismissed. The court's orders confirmed the dismissal of the application, thereby upholding the admissibility of the evidence obtained during the vehicle stop and search.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I record for completeness that it was not submitted the rights of free movement, privacy, liberty and security per ss 19, 25, 29 Human Rights Act 2019 (Qld) informed the interpretation of the Police Powers and Responsibilities Act in aid of this application. Nor was it submitted that, to the extent s 60 interferes with such rights, it does so beyond reasonable, justifiable limits. Conclusion and Orders I have concluded the stopping of the vehicle was lawfully performed pursuant to s 60. It in turn follows from the subsequent recognition of a passenger appearing to be Kubler, thus grounding the requisite reasonable suspicion per s 31, that the evidence obtained in the ensuing detention and search under s 31 was lawfully obtained. That conclusion makes it unnecessary to consider whether, in the event of a finding to the contrary, I would have allowed the evidence obtained in consequence of the detention and search into evidence in the exercise of my discretion. Indeed such an exercise in alternative decision-making is not practicable because the reasons for such a finding would here need to be known in order to properly weigh the competing discretionary considerations.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Duncan [2024] QSCPR 24
PARTIES:	THE KING (respondent) v MAUREEN ELIZABETH LINDSAY DUNCAN (applicant)
FILE NO/S:	677/24
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING	Supreme Court of Queensland
COURT:
DELIVERED ON:	6 September 2024
DELIVERED AT:	Cairns
HEARING DATE:	25 July 2024
JUDGE:	Henry J
ORDER:	Application dismissed

COUNSEL:	A Edwards KC, with M Harrison, for applicant N Crane, with T Watkins, for respondent
SOLICITORS:	Owens & Associates for applicant Director of Public Prosecutions (Queensland) for the respondent