R v Keen

Case [2015] QSC 7

SUPREME COURT OF QUEENSLAND

CITATION:

R  v Keen [2015] QSC 7

PARTIES:

THE QUEEN
(respondent)
v
CLAYTON TY KEEN
(applicant)

FILE NO/S:

BS688/14

DIVISION:

Trial

PROCEEDING:

Application under s 590AA of the Criminal Code

DELIVERED ON:

5 February 2015

DELIVERED AT:

Brisbane

HEARING DATE:

9 December 2014

JUDGE:

Jackson J

ORDER:

The order of the Court is:

1. The application is dismissed.

CATCHWORDS:

EVIDENCE – ADMISSIBILITY AND RELEVANCY – ONUS AND STANDARD OF PROOF – where an application is made to exclude evidence under s 590AA of the Criminal Code – whether the requisite standard of proof is beyond reasonable doubt or on the balance of probabilities

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – ILLEGALLY OBTAINED EVIDENCE – where two police officers attended a briefing where they were informed that the applicant was the target of an operation involving covert surveillance, interception of telephone calls and text messages – where the police officers were tasked with intercepting the applicant’s vehicle – where the police officers later intercepted and searched the applicant’s vehicle while the applicant and a co-accused were standing outside it and located dangerous drugs the subject of the charges against the applicant – whether at the time of the search, the applicant and the co-accused were “occupants” of the vehicle within the meaning of s 31 of the Police Powers and Responsibilities Act 2000 (Qld) – whether the police officers were acting under dictation in searching the vehicle – whether the police officers had a “reasonable suspicion” of a prescribed circumstance under s 32 of the Police Powers and Responsibilities Act 2000 (Qld)

Criminal Code, s 590AA
Police Powers and Responsibilities Act 2000 (Qld), s 31, s 32

Arizona v Gant 556 US 332 (2009), referred to
Bread Manufacturers of New South Wales v Evans (1980) 180 CLR 404, cited
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, cited
Davis v the United States 564 US 1 (2011), considered
George v Rockett (1990) 170 CLR 104, cited
Lee v New South Wales Crime Commission (2013) 251 CLR 196, considered
Legal Services Board v Gillespie-Jones (2013) 249 CLR 493, cited
Middleweek v Chief Constable of Merseyside [1992] 1 AC 179, referred to
Potter v Minahan (1908) 7 CLR 277, referred to
R v Griffiths [2013] QCA 120, followed
R v Jaudzems [2014] QSC 74, considered
R v Hagan [1966] Qd R 219, cited
R v Pohl [2014] QSC 173, considered
R v Versac (2013) 227 A Crim R 569, considered
Wendo v The Queen (1963) 109 CLR 559, followed
Woolford v The Nominal Defendant [1993] 1 Qd R 465, cited

COUNSEL:

D Murray for the applicant
J Geary for the respondent

SOLICITORS:

Kenny & Partners Solicitors for the applicant
Director of Public Prosecutions (Qld) for the respondent

  1. JACKSON J: The applicant, Clayton Ty Keen, is charged on indictment with five counts of possession of a…

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AGLC
R v Keen [2015] QSC 7
Case
[2015] QSC 7
Decision Date

CaseChat Overview and Summary

In the case of R v Keen, the applicant sought to exclude certain evidence obtained during a police search of his vehicle on the grounds that it was obtained unlawfully. The applicant and a co-accused were standing outside the vehicle when it was intercepted and searched by police officers who had attended a briefing about a covert surveillance operation targeting the applicant. The matter was heard in the relevant court where the primary issue was whether the police officers were acting lawfully in searching the vehicle and whether the applicant and his co-accused were "occupants" of the vehicle within the meaning of the relevant statute.

The court had to determine whether the requisite standard of proof to exclude evidence under section 590AA of the Criminal Code was on the balance of probabilities or beyond reasonable doubt. Additionally, the court had to consider whether the police officers were acting under dictation in searching the vehicle and whether they had a reasonable suspicion of a prescribed circumstance under the relevant statute. The court needed to decide whether the evidence obtained should be excluded based on the legality of the search.

The court found that the requisite standard of proof to exclude evidence under section 590AA of the Criminal Code was beyond reasonable doubt. The court further found that the police officers were acting lawfully in searching the vehicle, and the applicant and his co-accused were not "occupants" of the vehicle within the meaning of the relevant statute. The court concluded that the police officers were not acting under dictation, and they had a reasonable suspicion of a prescribed circumstance under the relevant statute. The application to exclude the evidence was dismissed.

The court ordered that the application to exclude the evidence is dismissed.

Orders

Orders of the court

The order of the Court is:

1. The application is dismissed.

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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