R v Fuentes

[2012] QSC 288

SUPREME COURT OF QUEENSLAND

CITATION:

R v Fuentes [2012] QSC 288

PARTIES:

THE QUEEN
v
HAROLD FUENTES
(applicant)

FILE NO/S:

SUP 1373/10

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

27 September 2012

DELIVERED AT:

Brisbane

HEARING DATE:

26 and 27 July 2012

JUDGE:

Dalton J

ORDER:

Application dismissed

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 searches – where the defendant charged with various drug offences – whether there is any requisite state of mind required before a licence check can be performed pursuant to s 60 PPRA – whether police officers properly exercised powers under s 160 PPRA to conduct a search of defendant’s home without warrant – whether reasonable suspicion that an immediate search was necessary – whether discretion should be exercised to admit the evidence – whether discretion should be exercised to exclude telephone message because of an absence of outgoing messages

Evidence Act 1977 (Qld)
Police Powers and Responsibilities Act 2000 (Qld)
Transport Operations (Road Use Management) Act 1995 (Qld)

Bain v Police [2011] SASC 228
Bunning v Cross (1978) 141 CLR 54
George v Rockett (1990) 170 CLR 104
R v Edwards (2009) 255 ALR 399
R v Rondo [2001] NSWCCA 540

COUNSEL:

Ms D Hawkins for the applicant
Mr P McCarthy for the respondent

SOLICITORS:

City Attorneys for the applicant
Director of Public Prosecutions (Qld) for the respondent

1. Mr Fuentes is remanded in custody on three counts.  One is that between 27 November 2009 and 7 February 2010 he trafficked in methylamphetamine and cocaine.  The second is that on 6 February 2010 he had possession of over two grams of cocaine.  The third is that on that same day he had in his possession paraphernalia for use in connection with trafficking in dangerous drugs.

1. An application is made on behalf of Mr Fuentes pursuant to s 590AA of the Criminal Code to exclude:

(a)evidence found as a result of a search of Mr Fuentes’ car on 6 February 2010;

(b)evidence found as a result of the search of Mr Fuentes’ home on 6 February 2010;

(c)text messages on Mr Fuentes’ telephone;

(d)any admissions made by Mr Fuentes as a result of the search of his home.

Search of Car

1. The evidence is that on 6 February 2010 at about 9.00 pm, Sergeant Faria and Constable Lewis of the South Brisbane District Tactical Crime Squad were in uniform driving a marked police car in Ipswich Road, Woolloongabba.  They were patrolling generally.  The squad to which they were attached was a uniformed squad and one of its targets was offences involving drugs.  The police officers saw a new, expensive-looking, convertible black BMW with two men in their 20’s as the driver (Mr Fuentes) and passenger.  The police officers decided to pull the car over to check the licence of the driver and did…