R v KL

[2017] QSC 144

SUPREME COURT OF QUEENSLAND

CITATION:

R v KL [2017] QSC 144

PARTIES:

THE QUEEN

v

KL

(applicant)

FILE NO/S:

Indictment No 721 of 2016

DIVISION:

Trial Division

PROCEEDING:

590AA pre-trial hearing

DELIVERED ON:

6 July 2017

DELIVERED AT:

Brisbane

HEARING DATE:

29 June 2017

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1.   The application is dismissed.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – ILLEGALLY OBTAINED EVIDENCE – PARTICULAR CASES – where police performed an emergent search of a residential unit under s 160 of the Police Powers and Responsibilities Act 2000 (Qld) – where a substance containing a dangerous drug and a mobile telephone which are alleged to be the property of the applicant were seized during the search – where a post-search approval order was applied for under s 161 of the Police Powers and Responsibilities Act 2000 (Qld) five days after the search was performed – where the applicant submits that the application under s 161 of the Police Powers and Responsibilities Act 2000 (Qld) was not made as soon as reasonably practicable – where the applicant applies for an order under s 590AA of the Criminal Code (Qld) that all evidence seized during the search of a residential unit on 6 and 7 August 2017 is inadmissible at his trial – whether the application should be granted

Criminal Code (Qld), 590AA

Police Powers and Responsibilities Act 2000 (Qld), s 160, s 161

Bunning v Cross (1978) 141 CLR 54, applied

Cleland v The Queen (1982) 151 CLR 1, cited

MacPherson v The Queen (1981) 147 CLR 512, distinguished

R v Bartorillo [2006] QCA 283, cited

R v Cahill [2016] QSC 275, discussed

R v Lee (1950) 82 CLR 133, distinguished

R v Ireland (1970) 126 CLR 321, cited

R v Keen [2016] 2 Qd R 1, cited

R v Milos [2014] QCA 314, applied

R v Munck [2010] QSC 416, cited

R v P [2016] QSC 49, followed

Wendo v The Queen (1963) 109 CLR 559, distinguished

COUNSEL:

M J McCarthy for the applicant

S Hedge for the Crown

SOLICITORS:

Fisher Dore Lawyers for the applicant

Office of the Director of Public Prosecutions for the Crown

Jackson J

1.   The applicant is awaiting trial on indictment in this court for offences that on dates between 21 May 2015 and 7 August 2015 he carried on the business of unlawfully trafficking in a dangerous drug and that on 7 August 2015 he unlawfully had possession of the dangerous drug methylamphetamine.

2. He applies for an order under s 590AA of the Criminal Code that all evidence seized during the search of a residential unit on 6 and 7 August 2017 is inadmissible at his trial.

Background facts

3.   At about midnight on 6 August, police officers entered the unit for the original purpose of arresting someone other than the defendant under a warrant for arrest.  They…