R v Hammond and Loosemore - [2016] QSC 98

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hammond & Loosemore [2016] QSC 98

PARTIES:

SOPHIE LEE HAMMOND

(First Applicant)

DAVID JOHN LOOSEMOORE

(Second Applicant)

v
THE QUEEN

(Respondent)

FILE NO/S:

SC No 50 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED EX TEMPORE ON:

14 April 2016

DELIVERED AT:

Mackay

HEARING DATE:

11-13 April 2016

JUDGE:

Henry J

ORDER:

1. The application of each defendant is upheld.

2. I exclude from evidence permitted to be adduced at trial the evidence of what was found in the police searches of unit 2/4 McHugh Street, Rural View, on 15 and 16 June 2014.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – ENTRY – where five police officers attended a private dwelling to make inquiries in relation to a traffic matter – where a police officer opened the flyscreen door and stepped into the dwelling simultaneously to requesting the occupiers’ consent – where entry to the dwelling was not invited and was not consented to by the occupiers – where two other police officers entered the open rear door of the dwelling simultaneously to police officers entering the front door – whether s 19 of the Police Powers and Responsibilities Act 2000 (Qld) empowered police to enter the dwelling – whether ss 54, 55, 56 or 57 of the Police Powers and Responsibilities Act 2000 (Qld) empowered police to enter and remain in the dwelling

CRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – SEARCH AND SEIZURE – where five police officers attended a private dwelling to make inquiries in relation to a traffic matter – where entry to the dwelling was not invited and was not consented to by the occupiers – where after entering the dwelling police saw a firearm and declared an emergent search pursuant to s 160 of the Police Powers and Responsibilities Act 2000 (Qld) – where in the ensuing search police located dangerous drugs and related utensils and items – where application was made for a post-search approval order – whether the emergent search by police that led to the police knowledge of the unsecured firearm, dangerous drugs and related materials was lawful

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – ILLEGALLY OBTAINED EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – PARTICULAR CASES – where five police officers attended a private dwelling to make inquiries in relation to a traffic matter – where entry to the dwelling was not invited and was not consented to by the occupiers – where the court held entry into the dwelling and subsequent emergent search were unlawful – where the applicants were co-jointly charged with drug offences as a result of what was found in the police search – where the evidence found and relied on in support of the charges was obtained through reliance on unlawfully obtained evidence – whether despite the unlawfulness of the obtaining of…

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: [2016] QSC 98
Decision Date: 14 April 2016

CaseChat Overview and Summary

The case of R v Hammond and Loosemore was heard in the District Court of Queensland. The defendants, Hammond and Loosemore, were charged with drug offences following a police search of their dwelling. The key issue before the court was whether the police entry into the dwelling and the subsequent emergent search were lawful, and if not, whether the evidence obtained should be excluded under the discretionary power set out in Bunning v Cross. The case hinged on the interpretation of various sections of the Police Powers and Responsibilities Act 2000 (Qld), including ss 19, 54, 55, 56, 57 and 160, and the applicability of these provisions to the circumstances of the police entry and search.

The court considered whether the police were empowered to enter the dwelling without consent and whether the emergent search was justified under s 160 of the Act. The defendants argued that the police entry was unlawful as it was not consented to and did not fall within any of the statutory exceptions permitting entry without consent. The court agreed that the police entry and search were unlawful as the officers did not have a warrant and the circumstances did not justify an emergent search. The court also noted that the police did not have a reasonable suspicion that an indictable offence was being committed at the time of entry, which was a necessary condition for an emergent search under s 160.

Given the unlawful nature of the police entry and search, the court considered whether the evidence obtained should be admitted under the discretion provided in Bunning v Cross. The court weighed the public interest in the conviction of the defendants against the public interest in protecting citizens from unlawful police conduct. The court concluded that the prejudicial effect of admitting the evidence outweighed the probative value, and that the public interest in excluding unlawfully obtained evidence was paramount. Consequently, the court excluded the evidence obtained from the unlawful search from being adduced at trial.

The final orders of the court were that the application of each defendant is upheld and that the evidence of what was found in the police searches of unit 2/4 McHugh Street, Rural View, on 15 and 16 June 2014 is excluded from evidence permitted to be adduced at trial.

Orders

Orders of the court

1. The application of each defendant is upheld.

2. I exclude from evidence permitted to be adduced at trial the evidence of what was found in the police searches of unit 2/4 McHugh Street, Rural View, on 15 and 16 June 2014.

Background

Background to the litigation

Full text does not contain this section.

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 Hammond & Loosemore [2016] QSC 98
PARTIES:	SOPHIE LEE HAMMOND (First Applicant) DAVID JOHN LOOSEMOORE (Second Applicant) v THE QUEEN (Respondent)
FILE NO/S:	SC No 50 of 2015
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Mackay
DELIVERED EX TEMPORE ON:	14 April 2016
DELIVERED AT:	Mackay
HEARING DATE:	11-13 April 2016
JUDGE:	Henry J
ORDER:	1. The application of each defendant is upheld. 2. I exclude from evidence permitted to be adduced at trial the evidence of what was found in the police searches of unit 2/4 McHugh Street, Rural View, on 15 and 16 June 2014.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – ENTRY – where five police officers attended a private dwelling to make inquiries in relation to a traffic matter – where a police officer opened the flyscreen door and stepped into the dwelling simultaneously to requesting the occupiers’ consent – where entry to the dwelling was not invited and was not consented to by the occupiers – where two other police officers entered the open rear door of the dwelling simultaneously to police officers entering the front door – whether s 19 of the Police Powers and Responsibilities Act 2000 (Qld) empowered police to enter the dwelling – whether ss 54, 55, 56 or 57 of the Police Powers and Responsibilities Act 2000 (Qld) empowered police to enter and remain in the dwelling CRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – SEARCH AND SEIZURE – where five police officers attended a private dwelling to make inquiries in relation to a traffic matter – where entry to the dwelling was not invited and was not consented to by the occupiers – where after entering the dwelling police saw a firearm and declared an emergent search pursuant to s 160 of the Police Powers and Responsibilities Act 2000 (Qld) – where in the ensuing search police located dangerous drugs and related utensils and items – where application was made for a post-search approval order – whether the emergent search by police that led to the police knowledge of the unsecured firearm, dangerous drugs and related materials was lawful CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – ILLEGALLY OBTAINED EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – PARTICULAR CASES – where five police officers attended a private dwelling to make inquiries in relation to a traffic matter – where entry to the dwelling was not invited and was not consented to by the occupiers – where the court held entry into the dwelling and subsequent emergent search were unlawful – where the applicants were co-jointly charged with drug offences as a result of what was found in the police search – where the evidence found and relied on in support of the charges was obtained through reliance on unlawfully obtained evidence – whether despite the unlawfulness of the obtaining of…