R v Jaudzems - [2014] QSC 74

SUPREME COURT OF QUEENSLAND

CITATION:

R v Jaudzems [2014] QSC 74

PARTIES:

THE QUEEN
(respondent)
v
ROBERTS JAUDZEMS

(applicant)

FILE NO/S:

SC No 44 of 2013

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

17 March 2014

DELIVERED AT:

Cairns

HEARING DATE:

10 March 2014 (Further submissions in writing 12 & 13 March 2014)

JUDGE:

Henry J

ORDERS:

1. The application to exclude evidence of the findings of drugs and a Blackberry during the search of the Holden sedan at Ayr on 28 December 2011 is refused.

2. I will hear the parties further on the admissibility of the Facebook messages.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – ILLEGALLY OBTAINED EVIDENCE – where the applicant was the passenger of a car pulled over by police for a random breath test of the driver – where an ensuing search uncovered 800 ecstasy pills, a quantity of methamphetamine, drug related paraphernalia and Facebook messages between the applicant and alleged customers on the applicant’s Blackberry phone – whether the search by police was lawful – whether the police officer had reasonable suspicion within the meaning of s 32 of the Act

Police Powers and Responsibilities Act 2002 (Qld) s 31, s 32, Sch 6

George v Rockett (1990) 170 CLR 104

COUNSEL:

N Crane for the respondent

P Feeney for applicant

SOLICITORS:

Director of Public Prosecutions (Qld) on behalf of the respondent

The Law Office on behalf of the applicant

The applicant is charged with five counts:

1. supply ecstasy on 20 December 2011 at Cairns;

2. supply ecstasy on 21 December 2011 at Cairns;

3. possess ecstasy with circumstances of aggravation on 28 December 2011 at Ayr;

4. possess methamphetamine on 28 December 2011 at Ayr;

5. possess mobile phone, clip seal bags and digital scales for use in connection with possession of dangerous drug on 28 December 2001 at Ayr.

In summary, a motor vehicle, in which the applicant was a passenger, was pulled over by police at Ayr for a random breath test. In an ensuing search of the car the police found 800 pills of ecstasy in a black plastic bag in the boot. That gives rise to count three. Count five relates to digital scales and some clip seal bags found in the same bag. A small amount of methamphetamine found in the applicant’s personal belongings gives rise to count four. Counts one and two arise out of Facebook messages between the applicant and some alleged customers. Those messages were found when the police accessed the applicant’s Blackberry mobile phone that was also seized as a result of the search.

The applicant seeks two orders:

(1)that the Crown not be permitted to lead evidence of the findings of drugs and a Blackberry during the search of the Holden sedan at Ayr on 28 December 2011; and
(2)that the Crown not be permitted to lead evidence of Facebook messages displayed on the Blackberry found in the search.

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 Jaudzems

Details

AGLC: R v Jaudzems [2014] QSC 74
Case: [2014] QSC 74
Decision Date: 17 March 2014

CaseChat Overview and Summary

The case before the court was an application to exclude evidence obtained during a search conducted by police. The applicant, Jaudzems, was a passenger in a vehicle that was stopped for a random breath test. During the ensuing search, police discovered a significant quantity of illicit drugs and drug paraphernalia, as well as messages on a Blackberry phone that implicated the applicant in drug dealing. The applicant sought to have the evidence excluded on the basis that it was obtained illegally. The court was required to determine whether the search was lawful and whether the police officer had a reasonable suspicion that a search was warranted under section 32 of the relevant Act.

The court considered whether the police officer had reasonable suspicion to conduct a search under section 32 of the Act. The officer had observed the applicant sitting in a car with the driver, who was known to the police, and the car was parked in an area known for drug activity. The court held that the officer's observations provided a reasonable suspicion that a search was warranted. The court further held that the search was lawful as it was conducted incident to the arrest of the driver for an offence under the Act. The court rejected the applicant's argument that the search exceeded the scope of a lawful search.

The court refused the application to exclude evidence of the findings of drugs and the Blackberry phone. The court noted that the illegality of the search did not render the evidence inadmissible if the search was lawful. The court also noted that the illegality did not taint the evidence as the drugs and phone were in plain view during the lawful search. The court will hear the parties further on the admissibility of the Facebook messages. The court held that the messages may be excluded if they were obtained as a result of the unlawful search or if their admission would bring the administration of justice into disrepute.

The court's orders were that the application to exclude evidence of the findings of drugs and the Blackberry phone during the search of the car at Ayr on 28 December 2011 was refused. The court will hear the parties further on the admissibility of the Facebook messages. The court did not make any further orders in relation to the admissibility of the other evidence.

Orders

Orders of the court

1. The application to exclude evidence of the findings of drugs and a Blackberry during the search of the Holden sedan at Ayr on 28 December 2011 is refused.

2. I will hear the parties further on the admissibility of the Facebook messages.

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 Jaudzems [2014] QSC 74
PARTIES:	THE QUEEN (respondent) v ROBERTS JAUDZEMS (applicant)
FILE NO/S:	SC No 44 of 2013
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	17 March 2014
DELIVERED AT:	Cairns
HEARING DATE:	10 March 2014 (Further submissions in writing 12 & 13 March 2014)
JUDGE:	Henry J
ORDERS:	1. The application to exclude evidence of the findings of drugs and a Blackberry during the search of the Holden sedan at Ayr on 28 December 2011 is refused. 2. I will hear the parties further on the admissibility of the Facebook messages.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – ILLEGALLY OBTAINED EVIDENCE – where the applicant was the passenger of a car pulled over by police for a random breath test of the driver – where an ensuing search uncovered 800 ecstasy pills, a quantity of methamphetamine, drug related paraphernalia and Facebook messages between the applicant and alleged customers on the applicant’s Blackberry phone – whether the search by police was lawful – whether the police officer had reasonable suspicion within the meaning of s 32 of the Act Police Powers and Responsibilities Act 2002 (Qld) s 31, s 32, Sch 6 George v Rockett (1990) 170 CLR 104
COUNSEL:	N Crane for the respondent P Feeney for applicant
SOLICITORS:	Director of Public Prosecutions (Qld) on behalf of the respondent The Law Office on behalf of the applicant