R v Ford

Case [2017] QSC 205


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, 26

R 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, cited

COUNSEL:

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

In the case of R v Ford, the defendant, Brandon John Ford, was charged with drug-related offences. The dispute centred on the admissibility of certain evidence obtained during a police interview and the seizure of the defendant's mobile phone. The matter was heard in the Supreme Court of Queensland. The primary legal issues that the court had to decide were whether the police complied with their obligations under the Police Powers and Responsibilities Act 2000 (Qld) and whether the defendant was informed of his rights under the Act.

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

For the reasons which follow I rule 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 mobile telephone seized on 20 March 2016 be excluded from evidence at the applicant’s trial;(c)in light of my ruling in relation to (a) above, it is unnecessary to determine the application for leave to add the intoxication ground.The evidence At around 1.25 am on 20 March 2016 Constable Kowalski, in company with Senior Constable van den Berg and another officer, were conducting plain clothes foot patrols on Brunswick Street, Fortitude Valley near the intersection with McLachlan Street. She observed a group of three males and one female walking on the opposite side of the road. This group was followed into the carpark at Brunswick Central. Constable Kowalski spoke to two of the males. She recognised the applicant as the person to whom other officers had previously spoken on 24 January 2016. On that occasion the other officers had located 31 MDMA tablets and $1,015 in cash on the applicant. Constable Kowalski asked the applicant and the other male if they were in possession of any dangerous drugs. Both stated they were not and consented to police conducting a search of their pockets and wallets. The applicant produced an Australian passport from his rear pocket in the name of Brandon John Ford, a wallet and a black I-Phone 5. The passport revealed to Constable Kowalski that the applicant was 18 years of age. Inside the wallet she located $390 in Australian currency. Constable Kowalski then had a brief unrecorded conversation with the applicant in relation to the large amount of cash in his wallet. During this conversation the applicant appeared to become increasingly nervous and started fidgeting. It was at this stage that Constable Kowalski detained the applicant for a further search. She requested Senior Constable van den Berg to search the applicant. The applicant was taken to an alcove at the side of the carpark for privacy reasons. After Senior Constable van den Berg had informed the applicant that he was going to conduct a search that would involve a partial strip search the applicant removed a clip seal bag from the front of his pants and handed it to Senior Constable van den Berg. This clip seal bag contained 14 blue tablets. Senior Constable van den Berg then escorted the applicant back to Constable Kowalski who activated her digital recorder. An interview was then conducted with the applicant, with both police officers asking questions. It is necessary to set out in full the exchanges which occurred at the commencement of the recorded interview:“CON KOWALSKI: Um yep okay.SCON VAN DEN BERG: Yeah ta. What’s your pin code mate?FORD: 4-6-0-7-2-8.SCON VAN DEN BERG: 4-6-0-7-2-8?CON KOWALSKI: So Brandon what was your middle name again Brandon?FORD: John.CON KOWALSKI: John? And it’s Ford isn’t it?FORD: Yep.CON KOWALSKI: What’s your date of birth?FORD: Twenty eighth of April nineteen ninety seven.CON KOWALSKI: Okay cool. Nineteen ninety seven. And what’s your address at the moment?FORD: Um Sixty MacDonald Drive.CON KOWALSKI: Is it M-C or M-A--FORD: M-A-C.CON KOWALSKI: M-A-C.FORD: D-O-N-A-L-D Drive.CON KOWALSKI: Drive--FORD: Narangba--CON KOWALSKI: Narangba. And you live there with mum?FORD: Yep.CON KOWALSKI: And dad?FORD: And st--CON KOWALSKI: Step-dad?FORD: Oh no.CON KOWALSKI: Oh okay mum’s partner, yep. Ah what’s the mobile number on--FORD: Not any more.CON KOWALSKI: Hey?FORD: Not any more.CON KOWALSKI: Not anymore?FORD: Yeah.CON KOWALSKI: What do you mean?FORD: Ah well I’m getting kicked out, they said if I didn’t have a job [INDISTINCT].CON KOWALSKI: Oh okay. Um what’s your mobile number Brandon?FORD: 0-4-0-2.CON KOWALSKI: Yep.FORD: 5-2-3.CON KOWALSKI: Yep.FORD: 1- [INDISTINCT].CON KOWALSKI: 1-7-4? So you’re looking for work at the moment? What’s um, what’s your pin code for your phone man?FORD: [INDISTINCT].SCON VAN DEN BERG: Ah what’s your pin code again?FORD: 4-6-0-7-2-8.CON KOWALSKI: Um Brandon obviously man um, we just stopped you guys tonight um, your behaviour indicated to me pretty early that you looked like you were, you had some drugs on you man so, um eventually you, you pulled this little bag out um from, was it in your undies or just in your trousers?FORD: It was in my undies.CON KOWALSKI: Alright man. So obviously I’m gonna have to ask you some questions about that okay? So before I ask you any questions, I must tell you you’ve the right to remain silent--FORD: Yep.CON KOWALSKI: So this means you don’t have to say anything, answer any questions or make a statement unless you wish to do so--FORD: Yeah.CON KOWALSKI: But if you do say something or make a statement, it may later be used as evidence okay?FORD: Yep.CON KOWALSKI: You understand that--FORD: Yeah.CON KOWALSKI: Warning Brandon?FORD: So if questions come up that I don’t feel like I like should answer at the moment, I’m free to say--CON KOWALSKI: Absolutely.FORD: Okay.CON KOWALSKI: Yep, yep. But um as long as you understand, I’m not tryna trick you.FORD: Yep.CON KOWALSKI: But obviously I’ve gotta ask you questions--FORD: Yeah.CON KOWALSKI: Okay? Um you also have the right to telephone or speak to a friend or relative--FORD: Mhm.CON KOWALSKI: To tell them where you are and arrange or attempt to arrange for them to be present during questioning.FORD: Yeah.CON KOWALSKI: And you have the right to speak to a lawyer of your choice to arrange or attempt to arrange for the lawyer to be present during questioning.FORD: Yeah.CON KOWALSKI: Okay? So if you wanna telephone or speak to any of these people, then I’ll delay my questioning for a reasonable period of time for that to happen.FORD: Yep.CON KOWALSKI: Okay? Is there anyone that you wanna telephone or speak to at this stage?FORD: Mm [INDISTINCT] who would I call?CON KOWALSKI: So I understand Ben’s your cousin?FORD: Yep.CON KOWALSKI: Yeah are you happy for him to be here while you chat to me?FORD: Um yeah, yeah, yep.CON KOWALSKI: Yeah? ‘Cause you, you can tell him to go and sit over there if you want--FORD: Nah.CON KOWALSKI: Or if you--FORD: Yeah.CON KOWALSKI: Yeah? So Ben can sort of act as your support person if you want, if wanna yeah--FORD: Yeah.CON KOWALSKI: If you wanna have him here that’s, that’s fine.FORD: Yeah I guess.CON KOWALSKI: Alright man. Um so how much have you had to drink tonight?FORD: Um nothing.CON KOWALSKI: No alcohol at all? Okay and how many pills have you had tonight?FORD: Just [INDISTINCT].CON KOWALSKI: Just one? And how long ago did you take it Brandon?FORD: [INDISTINCT] ten thirty?CON KOWALSKI: Then thirty okay and it’s so it’s now like half past one so it’s about three hours ago?FORD: Yep.CON KOWALSKI: Okay do you feel like you’re under the influence of that now?FORD: Ah not really no.CON KOWALSKI: Not really?FORD: Yeah coming down.CON KOWALSKI: Okay alright.SCON VAN DEN BERG: Just in, sorry to interrupt [INDISTINCT]. Ben, what’s your mobile number, or what’s your last name?HAYES: Sorry?SCON VAN DEN BERG: What’s your last name?HAYES: Hayes.SCON VAN DEN BERG: Hayes. He’s gonna be involved as an interview, he can’t be a support person.CON KOWALSKI: Oh okay alright. Um Ben unfortunately man I’m gonna have to ask you to um just [INDISTINCT] somewhere else just ‘cause of, some things in the phone that my partner’s seen that may involve you okay? Um so just while I talk to Brandon [INDISTINCT]. Um so mate if you, probably down, might be a, a good spot just down the, if you wanna grab a seat down thereHAYES: [INDISTINCT]. CON KOWALSKI: Um that way you can still see us and--HAYES: [INDISTINCT].CON KOWALSKI: See just, just---SCON VAN DEN BERG: J-, just be far enough so you can’t hear the conversation.CON KOWALSKI: Yeah where those, like there’s a little sort of brick seat, you see where those guys are sitting there?HAYES: Yeah the [INDISTINCT].CON KOWALSKI: Yeah, yeah.HAYES: Yeah.CON KOWALSKI: That way you can still see us and see what’s going on but you just can’t hear us.”[1][1] Transcript of Police Record of Interview between Constable Penny Kowalski and Senior Constable Damian A Van Den Berg and Brandon John Ford and Ben Hayes on 20 March 2016.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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