SUPREME COURT OF QUEENSLAND
CITATION:
R v Ford [2017] QSC 205
PARTIES:
THE QUEEN
(respondent)
v
BRANDON JOHN FORD(applicant)
FILE NO/S:
67 of 2017
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
20 September 2017
DELIVERED AT:
Brisbane
HEARING DATE:
12 July 2017
JUDGE:
Flanagan J
ORDER:
The Court rules that:
(a) the electronic recording of the field interview conducted between Constable Kowalski and Senior Constable van den Berg and the applicant on 20 March 2016 commencing at a time unknown but after 1.25 am and finishing at 1.58 am be excluded from evidence at the applicant’s trial;
(b) the stored information on the applicant’s Apple
iPhone 5 seized on 20 March 2016 be excluded from evidence at the applicant’s trial.CATCHWORDS:
CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – application pursuant to s 590AA of the Criminal Code to exclude evidence of a witness at trial – where the applicant was charged in relation to drug-related offences – where the police questioned the applicant in Fortitude Valley, Brisbane – where the applicant’s cousin was also present when the applicant was questioned by police – where the applicants cousin was subsequently excluded from questioning pursuant to s 441 of the Police Powers and Responsibilities Act 2000 (Qld) – where the applicant was not informed of his right to speak to another friend, relative, or lawyer and ask that person to be present during questioning – whether the police complied with their obligations under the Police Powers and Responsibilities Act 2000 (Qld) – whether the applicant was informed of his right to select a support person to be present during questioning – whether the applicant was permitted to exercise his right to nominate a support person to be present during questioning – whether the applicant was notified of his right to speak to a friend, relative or lawyer, to ask that person to be present during questioning – whether the police officers breached s 418 and 419 of the Police Powers and Responsibilities Act 2000 (Qld) – whether the applicant was notified of his right to speak to another friend, relative or lawyer, to ask that person to be present during questioning after his cousin was excluded from questioning – whether the police officers breached s 426 of the Police Powers and Responsibilities Act 2000 (Qld)
Criminal Code 1899 (Qld), ss 205A and 590AA
Evidence Act 1977 (Qld), s 130
Police Powers and Responsibilities Act 2000 (Qld), ss 5, 154, 415, 418, 419, 420, 421, 422, 423, 424, 425, 426, 428, 429, 430, 431, 432, 434, 441
Police Powers and Responsibilities Regulation 2012 (Qld), ss 22, 23, 26R v LR [2005] QCA 368, cited
R v Playford [2013] QCA 109, applied
R v Swaffield (1998) 192 CLR 159, cited
R v Bossley [2012] QSC 292
R v Nash [2014] QCA 139, citedCOUNSEL:
C Martinovic for the applicant
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- AGLC
- R v Ford [2017] QSC 205
- Case
- [2017] QSC 205
- Decision Date
CaseChat Overview and Summary
The court found that the police did not comply with their obligations under the Police Powers and Responsibilities Act 2000 (Qld). Specifically, the police failed to inform the defendant of his right to speak to a friend, relative, or lawyer and ask that person to be present during questioning, which is a breach of s 418 and 419 of the Act. Furthermore, the court determined that the police breached s 426 of the Act by not notifying the defendant of his right to select a support person to be present during questioning after his cousin was excluded from the interview. Given these breaches, the court exercised its discretion under s 590AA of the Criminal Code to exclude the evidence obtained during the interview and the stored information on the defendant’s Apple iPhone 5 from the trial.
Consequently, the court ruled that the electronic recording of the field interview and the stored information on the defendant’s mobile phone be excluded from evidence at the trial. The court also noted that it was unnecessary to determine the application for leave to add the intoxication ground due to the ruling on the exclusion of evidence.
Orders
Orders of the court
The Court rules that:
(a) the electronic recording of the field interview conducted between Constable Kowalski and Senior Constable van den Berg and the applicant on 20 March 2016 commencing at a time unknown but after 1.25 am and finishing at 1.58 am be excluded from evidence at the applicant’s trial;
(b) the stored information on the applicant’s Apple
iPhone 5 seized on 20 March 2016 be excluded from evidence at the applicant’s trial.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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