R v Kennedy

Case [2015] QDC 246

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Kennedy [2015] QDC 246

PARTIES:

R

v

John Joseph KENNEDY
(Applicant)

FILE NO:

Indictment No 1825 of 2013

DIVISION:

Criminal

PROCEEDING:

Pre-trial application

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

06 October 2015

DELIVERED AT:

Townsville

HEARING DATE:

11 September 2015

JUDGE:

Durward SC DCJ

ORDERS:

1  Application refused

CATCHWORDS:

CRIMINAL LAW – CONFESSIONS – ADMISSIBILITY – VOLUNTARINESS – execution of search warrant in a residence in respect of stolen property - where applicant made admissions against interest about drug offences in course of search - where applicant was an occupier of the residence but not the person named in the search warrant – whether applicant was under pressure through conduct of police – where no evidence of admissions being other than voluntary.

CRIMINAL LAW – POLICE POWERS AND RESPONSIBILITIES – EXCLUSION OF EVIDENCE – UNFAIRNESS AND PUBLIC POLICY – search of residence in relation to stolen property - where police did not inform applicant of right to contact a lawyer - where omission was said to have been an oversight – where applicant made admissions against interest in response to police questioning -  whether in that circumstance questioning of applicant about items related to production of methylamphetamine found in search justified exercise of discretion to exclude evidence – where there was other evidence implicating applicant in offence of producing the dangerous drug methylamphetamine.

LEGISLATION:

Criminal Code (Qld) section 590AA; Police Powers and Responsibilities Act 2000 sections 5, 7, 415, 418 and 431; Police Powers and Responsibilities Regulation 2012, Schedule 9 (Police Responsibilities Code 2012) sections 23 and 26.

CASES:

R v Cho [2001] QCA 196; R v LR [2006] 1 Qd R 435; The Queen v Swaffield (1998) 192 CLR 159; Van der Meer v The Queen (1988) 62 ALJR 656; Bunning v Cross (1978) 141 CLR 54; R v Lee (1950) 82 CLR 133; Cleland v R (1982) 151 CLR 1; Duke v R (1989) 180 CLR 508; EM v R (2007) 232 CLR 67; R v Ireland (1970) 126 CLR 321; R v Tietie and Wong-Kee [2011] QSC 166; McDermott v R (1948) 76 CLR 501; Collins v The Queen (1980) 31 ALR 257; R v Adamic [2000] QSC 402; R v Ajax [2010] QSC 338; R v Benton [2011] QSC 14; R v Thomas [2015] QSC 28; Pollard v The Queen (1992) 176 CLR 177; R v Pinkstone (unreported WASC 10.03.97, BC9701581)

COUNSEL:

S McLennan for the Applicant

Ms S Cupina for the Respondent

SOLICITORS:

R J Taylor Law for the Applicant

Office of the Director of Public Prosecutions for the Respondent

  1. [1] The Applicant is charged with drug offences. He has brought a pre-trial application pursuant to s 590AA of the Criminal Code (Queensland) to exclude statements against interest made in the course of the execution of a search warrant and subsequent search of a residence where he was…

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Details
AGLC
R v Kennedy [2015] QDC 246
Case
[2015] QDC 246
Decision Date

CaseChat Overview and Summary

In the case of R v Kennedy, the applicant was present in a residence during the execution of a search warrant issued in the name of another individual, Michael Tyler. The warrant was executed in relation to an alleged stolen property offence, specifically a Honda jet ski. The applicant, though not named in the search warrant, was present in the residence and was subsequently detained by police. During the search, items related to the production of methylamphetamine were discovered. The applicant made admissions to the police regarding drug offences in the course of the search. The central issue for the court was whether the admissions made by the applicant were voluntary and, consequently, admissible as evidence. Additionally, the court considered whether the police omission to inform the applicant of his right to contact a lawyer warranted the exclusion of the evidence under the public policy exception.

The court examined the voluntariness of the applicant’s admissions, considering the conduct of the police and the circumstances under which the admissions were made. It was noted that the applicant was not informed of his right to contact a lawyer, which was a procedural oversight by the police. Despite this, the court found that the applicant's admissions were voluntary and not influenced by any undue pressure from the police. The court concluded that the applicant's admissions were made freely and without coercion, and therefore, were admissible. The court also found that the exclusion of the evidence was not warranted under the public policy exception, as there was other evidence implicating the applicant in the drug production offence.

The reasoning of the court hinged on the absence of any evidence suggesting that the applicant’s admissions were not voluntary. The court emphasised that the procedural oversight did not taint the voluntariness of the applicant’s admissions. Consequently, the court refused the application to exclude the evidence obtained during the search and questioning of the applicant. The final orders of the court were that the application be refused.

Orders

Orders of the court

1 Application refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

[2] The search warrant was made out in the name of another person, namely Michael Tyler, described as an occupier of a residence at 8 Olsen Place, Jubilee Pocket. The offence was stated to be one of stealing by Tyler of a Honda jet ski. The property described as being subject to the search was a vessel compliance plate for a jet ski and some black paint. The warrant was issued on 07 March 2014 and executed on that date. The Applicant was not named in the search warrant but was present in the residence. The person Tyler was not present at the residence when the search warrant was executed.Evidence [3] The Applicant was detained by the police. He was informed of his right to remain silent, told that he had a right to speak to a friend or relative but was not informed that he had a right to contact a lawyer. The latter omission is the issue in this Application and the omission is conceded by the respondent. [4] When cautioned the Applicant was told by PC Constable Colley “That’s if we go to question you in relation to any offences OK?” [5] I heard evidence from PC Constable Colley and from the Applicant, each on a voir dire. I also heard the “field tape recording” of the relevant part of the search of the premises, including the impugned conversations. [6] The Applicant participated in some initial questioning about the residence and about Tyler. A group of Police Officers then commenced a search of the premises. Some twenty minutes after the first conversations with the police, it is apparent that some drug production and associated items were found in a spare room in the residence. They are described by PC Constable Colley as “small chemical containers and a blue cooler water bottle on the top shelf of a cupboard. Inside the blue cooler bottle it contains small pieces of glass where wrapped up in cloth and other unknown substances.” [7] The Applicant was taken to the spare room and further more specific questions were asked of him. He made some admissions. He was not warned again in accordance with the Police Powers and Responsibilities Act 2000 (“the PPRA”) and the Police Responsibilities Code 2012 (“the Responsibilities Code”). He once again was not informed of the right to contact a lawyer. [8] The relevant conversation between PC Constable Colley and the applicant took the following form:“Colley:Righto. Jump up here for me John. Just follow me around this and just come in here. Just tell me who’s, who uses this room?Applicant:Ah, I do.Colley:You do? What do you use it for?Applicant:Ahh.Colley:Is some of this stuff yours in here?Applicant:Yeh.Colley:What stuff is yours?Applicant:Umm. The jackets, umm … Colley:Is the majority of stuff in in this room yours?Applicant:Yeh.Colley:What’s not yours in this room?Applicant:… the furniture.Colley:The furniture?Applicant:Yeh.Colley:What about all the other items beside the furniture?Applicant:What items?Colley:Is the TV yours?Applicant:The TV? No.Colley:Yep. Does Michael also use this room?Applicant:No.Colley:No he doesn’t? Alright. Mate I’ve just got some items that I want to have a speak to you about. Mate. Mate, I’ve just got some items that I want to speak to you about. What can you tell me about that item there?Applicant:That’s a portable gas cooker mate.Colley:What do you use that for?Applicant:Camping.Colley:Camping, righto. Mate, there’s some other chemicals up on top of the TV.Applicant:No chemicals mate.Colley:Hey? Applicant:There’s no chemicals.Colley:I’ll just get the other officer to show you. What can you tell me about that?Applicant:Acetone? Colley:Yep. What do you use that for?Applicant:Cleaning stuff mate. Aye, cleaning CDs, same as you use metho.Colley:What’s that for there?Applicant:What do you mean mate?Colley:What’s in that?Applicant:There’s nothing in it. Water …Police Officer: Plus the needle in there?Colley:Mate, we’ve just found this so what can you tell me about that?Applicant:Nothing.Colley:Is this yours?Applicant:Hey?Colley:Is this yours?Applicant:Yeh, the box is.Colley:Yep, is that? What can you tell me about that?Applicant:Yep, that needle is mine.Colley:It’s yours?Applicant:Yep. Colley:What did you use that needle for?Applicant:Injecting when I inject it.Colley:Yeh, what sort of substance did you inject?Applicant:Amphetamine.Colley:Amphetamine and how long ago would you have used that?Applicant:I don’t know, way over six months ago.Colley:Yeh. I’ve just located this too …Applicant:It’s all clean and everything.Colley:What’s that? Nothing in that?Applicant:No.Colley:How come there is stuff in there, like why would …Police Officer: What would it be mate?Applicant:Don’t know.Colley:Did you place that stuff in there?Applicant:No. Colley:And what’s this stuff here?Applicant:That’s nothing mate.Police Officer: Well there’s, there’s residue in the bottom.Applicant:It’s glass thing like a syringe.Colley:Ah yeh. Police Officer: There’s white powders in there mate.Applicant:There’s no, there’s no drugs in there.Police officer: Righto mate.Colley:Righto, do you know that it is an offence to umm fail to dispose?Applicant:It’s glass mate.Colley:Hey? Applicant:It’s glass.Colley:No, I’m talking about the needle.Applicant:What needle?……Colley:Ok. Mate I’m going to put this back up here ok? I found it over there but I’ll … alright mate, come back out here and we’ll sit up on the couch hey? Just have a seat back there for me.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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