R v Koning
[2001] QSC 131
•28 March 2001
SUPREME COURT OF QUEENSLAND
CITATION: R v Koning [2001] QSC 131 PARTIES: THE QUEEN
v
ANTHONY TERRENCE KONINGFILE NO: 13 of 2001 DIVISION: Trial Division DELIVERED ON: 28 March 2001 DELIVERED AT: Brisbane HEARING DATE: 8 March 2001 JUDGE: Mullins J ORDER: Application that evidence obtained in the search of Unit 2, Calamvale Motel on 26 August 1999 be excluded from the jury is refused. CATCHWORDS: CRIMINAL LAW – EVIDENCE – application for pre-trial ruling pursuant to s592A of the Criminal Code – whether police were entitled to rely on s31 of Police Powers and Responsibilities Act 1997 to search the motel room without a search warrant – whether the court should exercise its discretion to exclude the evidence obtained by the unlawful search.
Criminal Code s592A
Police Powers and Responsibilities Act 1997 s31Bunning v Cross (1978) 141 CLR 54
R v Ireland (1970) 126 CLR 321COUNSEL: MP Van der Walt for the accused
PH Godsall for the CrownSOLICITORS: Laurie Watling & Associates for the accused
Queensland Department of Public Prosecutions for the Crown
MULLINS J: The accused is charged that on 26 August 1999 at Brisbane he unlawfully had possession of a dangerous drug methylamphetamine and the quantity of that drug exceeded 2 grams. The accused is further charged that on the same day he unlawfully had possession of the drug cannabis sativa.
This is an oral application pursuant to s592A of the Criminal Code by the accused that evidence obtained by Detective Sergeant Stephen Ronald Hatton in the search of Unit 2 of the Calamvale Motel ("the motel room") on 26 August 1999 be excluded from the jury on the ground that it was an unlawful search.
At approximately 11:00am on 26 August 1999 Detective Hatton received information about the motel room. The informant made reference to the accused as the occupier of the motel room and that he had been observed lying on the floor and looked to be affected by drugs or other substances. The informant also stated that a number of people had been seen coming to and going from the motel room throughout the morning, that two cars were currently parked at the front of the motel room and that containers had been seen in the motel room that the informant believed to contain chemicals. Details of the two cars parked in front of the motel room were provided by the informant.
Acting on this information Detective Hatton checked the details of the vehicles in front of the motel room and ascertained that one vehicle was a Holden Commodore linked to the accused and the other vehicle was a hire vehicle. Detective Hatton made checks in relation to the accused's background history, as known to the police.
As a result of all the information obtained by Detective Hatton, he was suspicious that the motel room was being used for the supply or manufacture of drugs. Detective Hatton decided to obtain a search warrant pursuant to the Police Powers and Responsibilities Act 1997 ("the Act") in order to search the motel room. At that time the normal procedure for obtaining a search warrant was to complete the precedent documents in a search warrant package on the police computer. While Detective Hatton was in the process of completing the application for the search warrant, the police computer system was taken off line. The computers in all the police stations in the area were affected in the same way.
Detective Hatton did not consider alternative means of producing the documents required for a search warrant. He was cross-examined on a number of means such as requesting a police station in another part of Queensland to print out the requisite documents and send them by facsimile or obtaining copies of a completed application and search warrant and using them to write out or type the documents needed to obtain the search warrant to search the motel room. Detective Hatton frankly admitted that it did not occur to him to endeavour to obtain the requisite forms for the application for a search warrant and the search warrant by any alternative means.
As Detective Hatton was not aware when the computer system would be in use after being taken off line, he then formed the opinion that he could not wait to obtain a search warrant and should proceed to the motel room urgently. He states that he did so in the belief that if entry were not gained promptly then evidence would be lost, concealed or destroyed, having regard to the information about the people coming to and going from the motel room.
On arriving at the unit Detective Hatton saw the accused standing outside the open door of the unit at a motor vehicle. On entering the motel room Detective Hatton saw a male person and a female person. The male person was seen to pass something to the female person who hid it in her underwear. A later search revealed amphetamines and cannabis in the female person's underwear. The amphetamines found on the female person are part of the amphetamines which are the subject of the charge against the accused.
Detective Hatton attended the Inala Magistrates Court the next day and obtained an order approving the search pursuant to section 31 of the Act. The fact that such order was obtained does not determine the issue between the Crown and the accused, as to whether Detective Hatton was entitled to rely on section 31 of the Act.
The first issue on this application is therefore whether Detective Hatton was entitled to rely on section 31 of the Act to conduct a search without a search warrant in circumstances where his attempts to complete the paperwork required for obtaining the search warrant were thwarted by the computer system's ceasing to operate. If the search were found to be unlawful, the second issue raised by the application is whether the evidence obtained on the search should be excluded in the exercise of the court's discretion: R v Ireland (1970) 126 CLR 321, 334-335.
On the first issue, it is apparent from Detective Hatton's evidence that when he believed he could obtain a search warrant in the normal course, the time required for doing so did not put at risk the evidence which he hoped to locate at the motel room. The information provided by the informant did not suggest the departure of the accused from the motel room was imminent or that the suspicious activities were being concluded. When the computer system went off line, Detective Hatton did not turn his mind to alternative means of obtaining a search warrant. His decision to proceed immediately to the motel room and search without a warrant was as a result of the delays he anticipated before obtaining a search warrant and the possibility that those delays together with the time that had already elapsed in checking the information received about the accused and attempting to prepare the search warrant documents might mean the activities in the motel room would have ended.
It is likely that one of the suggested alternative means of obtaining the requisite search warrant documents would have been available, if Detective Hatton had thought to use that means, and would not have added a significantly greater period of time before Detective Hatton would have been in a position to proceed to the motel room with a search warrant.
The conditions which must be fulfilled before section 31 of the Act applies are set out in sub-section (1). There was ample information to justify Detective Hatton's having the reasonable suspicion that evidence may be located at the motel room relating to the commission of an offence. I do not consider, however, in all the circumstances that there was sufficient information for Detective Hatton to reasonably suspect that the evidence may be lost, concealed or destroyed unless the motel room were immediately entered and searched. As that condition for the application of section 31 of the Act was not fulfilled, Detective Hatton was not entitled to rely on section 31 of the Act to search the motel room without a search warrant.
It was submitted on behalf of the accused that Detective Hatton's failure to seek a search warrant after the computer system became unavailable amounted to reckless disregard of the Act. Although I have found that section 31 of the Act did not authorise Detective Hatton to search the motel room without a warrant and it therefore follows that the search was unlawful, I do not accept that Detective Hatton's failure to use alternative means to procure the preparation of search warrant documents when the computer system failed meant that he acted in reckless disregard of the law. Having regard to his evidence that it did not occur to him to consider alternative means of obtaining the search warrant documents, I conclude that his failure to do so was oversight.
On the second issue, there is an express statement in section 7 of the Act that the Act does not affect the common law under which a court in a criminal proceeding may exclude evidence in the exercise of its discretion. That is also legislative recognition that the discretion can be exercised not to exclude the evidence, even though there has been a breach of the Act in obtaining that evidence. Factors relevant to the exercise of the discretion are set out in the judgment of Stephen and Aickin JJ in Bunning v Cross (1978) 141 CLR 54, 78-80. Mr Van der Walt on behalf of the accused summarised those factors as follows:
(a) whether the unlawfulness was a deliberate or reckless disregard of the law;
(b)where the illegality was as a result of a mistake, the cogency of the contested evidence;
(c)how easy would it have been to comply with the law;
(d)the nature of the offence;
(e)the relevant legislation.
These factors are relevant to the two competing public policy considerations that underlie the exercise of the discretion which were described in Bunning v Cross at 74 as:
"... the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law."
On the basis that the unlawfulness was as a result of oversight on Detective Hatton's part, the cogency of the evidence obtained on the search and the seriousness of the offences with which the accused has been charged, the discretion must be exercised against excluding the evidence obtained on the unlawful search.
I therefore refuse the application.
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