R v Hickey - [2016] QDC 119

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Hickey [2016] QDC 119

PARTIES:

THE QUEEN

(Respondent)

v

LUKE DAVID HICKEY

(Applicant)

FILE NO/S:

187/16

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

26 May 2016

DELIVERED AT:

Brisbane

HEARING DATE:

17 May 2016

JUDGE:

Chowdhury DCJ

ORDER:

1. Application refused.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – SEARCH AND SEIZURE – where Police undertook a search of a vehicle pursuant to section 160 of the Police Powers and Responsibilities Act 2000 (Qld) – whether the Police had sufficient grounds to undertake such a search –whether the seized property should be excluded as evidence in the exercise of discretion

Police Powers and Responsibilities Act 2000 (Qld), s29, s30, s31, s159(a), s160 and sch 6.

George v Rockett (1990) 170 CLR 104

R v Versac (2013) 227 A Crim R 569

R v Ireland (1970) 126 CLR 321

R v Day & Anor [2008] QSC 358

R v Pohl [2014] QSC 173

R v Swain [2012] QSC 233

R v P & Anor [2016] QSC 49

COUNSEL:

CW Wallis for the Respondent

J Godbolt for the Applicant

SOLICITORS:

Office of the Director of Public Prosecutions for the Respondent

Legal Aid Queensland for the Applicant

By application filed in the District Court of Queensland on 4 May 2016, the applicant seeks to exclude evidence of dangerous drugs and other items found in his car during a search by police in the early hours of 28 July 2015.

The events leading up to the disputed search are set out in the statement of Constable Nicola Wood (Exhibit 1) and the statement of Constable Kieren Sparks (Exhibit 2). In short, at about 11.30pm the two Police officers were travelling outbound on Wymmun Road at Cannon Hill when they observed a black Holden Commodore station wagon, registration, 207 VTR, travel across Wynnum Road into an adjoining road. Police checks identified that the vehicle was registered to the applicant, and that he was wanted for questioning in relation to three outstanding matters. The Police turned their vehicle around with a view to intercept the car, however they lost sight of the wagon.

A short time later the two police officers observed a gold Holden Commodore sedan, registration, 330 VLR, parked in the middle of a carpark at the Cannon Hill railway station. They approached the driver and sole occupant, Shane Rogers, who consented to a search of his car. Rogers admitted to Constable Wood that he was an intravenous drug user, and she located approximately $1,000 in cash in his wallet. While searching Rogers’ car, Constable Wood observed the applicant’s Commodore wagon travel southbound on the road past the carpark.

At about 1.30am on 28 July 2015, the two police officers were conducting patrols in the area of the Colmslie Hotel, at 40 Junction Road, Morningside. Constable Wood observed Rogers’ gold Holden Commodore sedan, and the applicant’s black Holden Commodore wagon parked in the carpark of the…

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 Hickey

Details

AGLC: R v Hickey [2016] QDC 119
Case: [2016] QDC 119
Decision Date: 26 May 2016

CaseChat Overview and Summary

In the case of R v Hickey, the appellant was charged with drug-related offences following a search of his vehicle conducted by police officers. The search was executed under the authority of section 160 of the Police Powers and Responsibilities Act 2000 (Qld). The primary issue before the court was whether the police officers had sufficient grounds to conduct the search and whether the seized items should be excluded from evidence under the court's discretion. The appellant argued that the police lacked reasonable suspicion to justify the search, and that the evidence obtained should be suppressed as a result.

The court considered the legal standards applicable to the issuance of search warrants and the common law power of police to search without a warrant when reasonable suspicion exists. The court examined the facts and circumstances known to the officers at the time of the search to determine if these facts provided reasonable suspicion. The court found that the officers had a reasonable basis to suspect illegal activity based on the appellant's behaviour and the information available to them at the time of the search. Consequently, the court held that the police acted within their lawful powers when they conducted the search of the vehicle. The court further determined that the evidence obtained should not be excluded, as the officers' actions were justified and the evidence was lawfully obtained.

As a result of the court's determination, the application to exclude the evidence was refused. The court confirmed that the search was conducted lawfully, and that the evidence obtained would be admissible in the proceedings against the appellant. The final orders of the court were that the application to exclude the evidence be refused, and the evidence obtained during the search would be admissible in the appellant's criminal trial.

Orders

Orders of the court

1. Application refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Hickey [2016] QDC 119
PARTIES:	THE QUEEN (Respondent) v LUKE DAVID HICKEY (Applicant)
FILE NO/S:	187/16
DIVISION:	Criminal
PROCEEDING:	Application
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	26 May 2016
DELIVERED AT:	Brisbane
HEARING DATE:	17 May 2016
JUDGE:	Chowdhury DCJ
ORDER:	1. Application refused.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – SEARCH AND SEIZURE – where Police undertook a search of a vehicle pursuant to section 160 of the Police Powers and Responsibilities Act 2000 (Qld) – whether the Police had sufficient grounds to undertake such a search –whether the seized property should be excluded as evidence in the exercise of discretion Police Powers and Responsibilities Act 2000 (Qld), s29, s30, s31, s159(a), s160 and sch 6. George v Rockett (1990) 170 CLR 104 R v Versac (2013) 227 A Crim R 569 R v Ireland (1970) 126 CLR 321 R v Day & Anor [2008] QSC 358 R v Pohl [2014] QSC 173 R v Swain [2012] QSC 233 R v P & Anor [2016] QSC 49
COUNSEL:	CW Wallis for the Respondent J Godbolt for the Applicant
SOLICITORS:	Office of the Director of Public Prosecutions for the Respondent Legal Aid Queensland for the Applicant