R v James

Case [2024] QSCPR 5

SUPREME COURT OF QUEENSLAND

CITATION:  R v James [2024] QSCPR 5
PARTIES:  THE KING
(respondent)
v
KRISTY LOUISE JAMES
(applicant)
FILE NO/S:  Indictment No 875 of 2023
DIVISION:  Trial Division
PROCEEDING:  Application under s 590AA, Criminal Code
ORIGINATING  Supreme Court at Brisbane
COURT: 
DELIVERED ON:  8 February 2024
DELIVERED AT:  Brisbane
HEARING DATE:  28 November 2023
JUDGE:  Cooper J
ORDER:  Application dismissed

CATCHWORDS: 

CRIMINAL LAW – PROCEDURE – SEARCH AND SEIZURE – where dangerous drugs found in applicant’s rented unit – where police entered unit without warrant for purpose of searching for wanted person – where police

received a text message from person believed to be the wanted

person stating he was at the applicant’s address – where text message was sent two days prior to search – whether

reasonable suspicion existed that wanted person was still at the unit two days after the text message was sent so as to render the search lawful under s 21 of the Police Powers and Responsibilities Act 2000 (Qld)

Criminal Code 1899, s 590AA
Police Powers and Responsibilities Act 2000 (Qld), s 21, s
160
Bunning v Cross (1978) 141 CLR 54, cited
McHugh v The Queen [2022] SASCA 5, considered
R v Bossley [2015] 2 Qd R 102; [2012] QSC 292, considered
R v Ireland (1970) 126 CLR 321, cited
COUNSEL:  ML Longhurst with N Keys for the applicant
C Nicola for the respondent
SOLICITORS:  RH Legal for the applicant
Director of Public Prosecutions (Queensland) for the
respondent
Introduction 

  1. The applicant is charged on indictment that on 24 May 2022:

(a) she unlawfully had possession of the dangerous drug methylamphetamine in a quantity exceeding 2.0 grams;
(b) she unlawfully possessed a relevant substance, 1,4 Butanediol; and
(c) she had in her possession clip seal bags for use in connection with the commission of the crime of possessing dangerous drugs.

  1. The items the subject of the three counts were found during the search of the

    applicant’s rented unit in the Cloudland apartment complex at Bowen Hills.

  2. On 24 May 2022, police entered the unit without a warrant and without the applicant’s

    consent. The applicant and a male person were present at the unit when the police

    entered. Upon entering the applicant’s bedroom, police observed a large bag

containing a crystalline substance. Police then declared an emergent search,[1] locating

[1] Police Powers and Responsibilities Act 2000 (Qld) (PPRA), s 160.

the relevant items.

  1. The applicant has applied under s 590AA of the Criminal Code for a ruling that the evidence obtained from the search be excluded from her trial. She submits that the entry into her unit without a warrant and without her consent was not authorised.

  2. If I find that entry into the unit was lawful, the applicant does not challenge the lawfulness of the search which was subsequently conducted.[2]

    [2]            Transcript 1-40:30 to 1-41:22.

  3. If I conclude that the entry into the unit was unlawful, I must then consider whether to exercise the discretion…

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Details
AGLC
R v James [2024] QSCPR 5
Case
[2024] QSCPR 5
Decision Date

CaseChat Overview and Summary

In the matter of R v James, the dispute centred around the legality of a search conducted by police officers who entered the applicant's rented unit without a warrant. The search led to the discovery of dangerous drugs within the unit. The police had entered the unit under the premise of searching for a wanted person, Neuman Heilbronn, who was believed to be residing there. The applicant contested the legality of the police entry and the subsequent search, arguing that it violated their rights under the law.

The legal issues that the court had to determine involved the application of statutory provisions concerning the powers of police officers to enter a dwelling and conduct a search without a warrant. Specifically, the court had to consider whether the officers had reasonable suspicion to enter the unit and whether this suspicion was grounded in circumstances that would be considered reasonable by a prudent person in the officers' position. The court also needed to examine whether the officers' actions complied with the relevant statutory provisions and whether the evidence obtained as a result of the search should be excluded under the law.

The court found that the statutory definition of "reasonably suspects" required the presence of an actual suspicion in the mind of a police officer at the time of entry, which must be based on reasonable grounds in the context of the circumstances faced by the officers. The court concluded that the officers had sufficient information to reasonably suspect that the wanted person was in the unit, thus justifying their entry. The officers' actions were deemed to be in accordance with the statutory provisions, and the evidence obtained was admissible. Consequently, the application to exclude the evidence was dismissed.

The final orders of the court were that the application by the applicant to exclude the evidence obtained from the search of their unit was dismissed. The evidence gathered during the search would therefore be admissible in any subsequent proceedings against the applicant.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

In my view the statutory definition of “reasonably suspects”, considered in the context of s 21, directs attention to the presence of an actual suspicion in the mind of the relevant officer when the power to enter a dwelling is exercised and whether that officer’s suspicion is based on grounds that are reasonable in the circumstances. That is, the circumstances existing at the time the power is exercised must be sufficient to induce the suspicion in the mind of a reasonable person in the circumstances confronting the police officer. Evidence Four police attached to the Fortitude Valley Tactical Crime Squad entered the applicant’s unit at about 1.20 pm on 24 May 2022. Those officers were Senior Constable Tighe, Senior Constable Mamaril, Senior Constable Mannix and Senior Constable Stewart. At that time, SC Tighe held the rank of acting sergeant. Only SC Tighe gave oral evidence at the hearing of the application. He was the senior officer present when police entered the applicant’s unit. SC Tighe stated that police attended the applicant’s unit because they had received information that a wanted person named Neuman Heilbronn was at the unit. Mr Heilbronn was wanted on a return to prison warrant issued on 19 April 2022.[5] Prior to receiving the information which led police to attend the applicant’s unit, SC Tighe and other officers from the Fortitude Valley Tactical Crime Squad had been trying to locate Mr Heilbronn for about one month. Police had attended the address for Mr Heilbronn shown on the warrant as well as houses where known associates of Mr Heilbronn lived. SC Tighe was aware that other officers had unsuccessfully attempted to track Mr Heilbronn’s mobile phone. SC Tighe said that Mr Heilbronn had been actively avoiding police during that period. [5] Exhibit 2. At about 10.30am on 24 May 2022, SC Tighe and SC Mannix intercepted a motor vehicle on Ann Street in Brisbane. After speaking with the passenger in that vehicle, SC Mannix placed that person under arrest in connection with some outstanding warrants. While that person was in custody at the Brisbane City watchhouse she consented to SC Mannix performing a search of her mobile phone. During that search, SC Mannix took a photograph of a text message in an exchange with a contact identified as “Fatty” and by the initials “FN”.[6] SC Mannix sent the photograph of the text message to SC Tighe. [6] Exhibit 1. SC Tighe was aware from dealings he had with Mr Heilbronn over the years that his nickname was “Fatty”. The text message shown in the photograph as having been sent by “Fatty” relevantly stated: “… I am at Cloudland – 7 Boyd Street, Bowen Hills. Dial #099 at the gate, then follow the driveway until you reach the visitor parking marked in the screenshot. I am in Nebula, unit 99. The intercom is next to the mailboxes.” On its face, this was a statement by “Fatty” that, when he sent the text message, he was at 99/7 Boyd Street, Bowen Hills (the Cloudland address).[7] The photograph of the text message does not contain any information as to when the message was sent. [7] There is no dispute that the Cloudland address is the address of the applicant’s unit.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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