R v Kovacevic

Case [2020] QSC 399

SUPREME COURT OF QUEENSLAND

CITATION:  R v Kovacevic [2020] QSC 399
PARTIES:  THE QUEEN
(respondent)
v
IAN JOHN KOVACEVIC
(applicant)
FILE NO/S:  Indictment No 1452 of 2019
DIVISION:  Trial
PROCEEDING:  Application filed on 4 October 2019
ORIGINATING  Supreme Court at Brisbane
COURT: 
DELIVERED ON:  31 July 2020
DELIVERED AT:  Brisbane

HEARING DATE: 18 October 2019; further submissions on behalf of the respondent received on 12 February 2020; addendum outline of submissions on behalf of the applicant received on 13 February 2020

JUDGE:  Burns J
ORDER:  Application dismissed

CATCHWORDS: CRIMINAL LAW – PROCEDURE – WARRANTS,

ARREST, SEARCH, SEIZURE AND INCIDENTAL

POWERS – SEARCH AND SEIZURE – where the applicant

was charged on indictment with unlawful possession of

dangerous drugs – where a vehicle the applicant was driving

was directed by police to stop and then searched pursuant to ss 31 and 32 of the Police Powers and Responsibilities Act

2000 (Qld) – where, during the search, dangerous drugs were discovered in the vehicle – where the applicant asserts that the search was unlawful – where the applicant seeks an order that

the evidence obtained as a result of the search as well as various statements made by him in connection with the search

be excluded from evidence at his trial – whether police had a

reasonable suspicion that there may be a dangerous drug in the

vehicle – whether the search was unlawful

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – PARTICULAR CASES – where the applicant was charged on indictment with unlawful possession of dangerous drugs –

where a vehicle the applicant was driving was directed by

police to stop and then searched pursuant to ss 31 and 32 of the

Police Powers and Responsibilities Act 2000 (Qld) – where,

during the search, dangerous drugs were discovered in the

vehicle – where the applicant seeks an order that the evidence

obtained as a result of the search as well as various statements made by him in connection with the search be excluded from

evidence at his trial – where the search was unlawful –

whether, despite the unlawfulness of the search, the challenged

evidence ought be admitted in the exercise of the court’s

discretion

Criminal Code 1899

(Qld), s 590AA s 31, s 32

Drugs Misuse Act 1986 (Qld), s 9(1)(a)
Justices Act 1886 (Qld), s 110A
Bunning v Cross (1978) 141 CLR 54, followed
Commissioner of Police v Flanagan [2019] 1 Qd R 249,
followed
George v Rockett (1990) 170 CLR 104, cited
Kadir v The Queen; Grech v The Queen [2020] HCA 1, cited
R v Ireland (1970) 126 CLR 321, cited
R v Keen [2016] 2 Qd R 1, followed
R v Milos [2014] QCA 314, cited
R v Pollard (1992) 176 CLR 177, cited
R v Purdon [2016] QSC 128, cited
R v Rockford [2015] SASCFC 51, cited

Rowe v Kemper [2009] 1 Qd R…

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R v Kovacevic [2020] QSC 399
Case
[2020] QSC 399
Decision Date

CaseChat Overview and Summary

The case of R v Kovacevic involved a dispute regarding the admissibility of evidence obtained during a vehicle stop and subsequent search. The applicant, who was the driver of a vehicle stopped by police, challenged the lawfulness of the search and the admissibility of the evidence gathered. The court was tasked with determining whether the police had lawful grounds to stop and search the vehicle and, if not, whether the evidence should be admitted under the court's discretion. The Crown opposed the application, asserting that the search was lawful and that the evidence should be admitted regardless.

The legal issues before the court centred on the admissibility of evidence obtained through an unlawful search. The court needed to examine whether the police had reasonable suspicion or probable cause to justify stopping and searching the vehicle. If the court found the search to be unlawful, it also had to consider whether the evidence should be admitted under the court's discretion. This involved a balancing of the principles of fairness and the need to prevent the use of evidence obtained through unlawful means.

In reaching its decision, the court carefully considered the circumstances of the vehicle stop and search as outlined in the written statement and oral evidence of Senior Constable Nielsen. The court found that the police did not have reasonable suspicion or probable cause to justify the stop and search. Consequently, the evidence obtained was deemed inadmissible. The Crown's argument for admitting the evidence in the exercise of the court's discretion was rejected, leading to the dismissal of the applicant's application.

The court's final orders were to dismiss the application, thereby confirming that the evidence obtained from the unlawful search was not admissible in the proceedings. This decision underscores the importance of adhering to legal standards in conducting vehicle stops and searches to ensure the protection of individual rights and the integrity of the legal process.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

The application was opposed by the Crown. It was argued that the search was lawful and that, even if the court were to determine otherwise, the evidence should nonetheless be admitted in the exercise of the court’s discretion. The evidence No witnesses were called to give evidence on the application, and nor was any affidavit material relied on. Instead, the parties were agreed that the application should be decided on the basis of a written statement prepared by the arresting officer, Senior Constable Nielsen, on 5 April 2019 and admitted pursuant to s 110A of the Justices Act 1886 (Qld) at the committal hearing along with part of the depositions, that is to say, a transcript of the oral evidence given by SC Nielsen at that hearing. According to that written and oral evidence, on the morning of 26 March 2019, SC Nielsen along with other police officers were positioned at a “static random breath-testing site” on Dornoch Terrace, West End, not far from the junction of that roadway with Hardgrave Road. They were stopping vehicles travelling in both directions. At about 10.15 am, SC Nielsen heard the sound of a “loud vehicle engine” and a short time later observed a black Ford Falcon sedan with New South Wales licence plates appear from around the bend of Hardgrave Road and travel towards him. As the vehicle rounded the bend, SC Nielsen heard the “sound of the engine lower” and, as it approached the position where police were assembled, it was observed to slow down. SC Nielsen stood in the middle of the roadway and motioned for the vehicle to pull over. By the time it reached his position, the vehicle was “travelling very slowly”. The applicant was the driver. He was accompanied by two other men, one seated in the front passenger seat and the other behind that man in the rear passenger compartment. All of the occupants in the vehicle were from New South Wales. The applicant was asked by another police officer to produce his driver’s licence. This he did whilst also stating that he was the holder of a New South Wales learner’s licence. Another police officer asked the man seated in the front passenger seat whether he had a current open driver’s licence. SC Nielsen saw that this man’s hands were “shaking” whilst he retrieved his New South Wales driver’s licence and handed it to the other police officer. SC Nielsen checked the vehicle’s registration. This revealed that the vehicle was not registered to the applicant or to the man seated next to him. The applicant said that the vehicle was owned by his brother. According to SC Nielsen, the applicant “appeared to be over chatty with us” and was “continually asking how to get back onto a main road”. At the same time, SC Nielsen could hear the applicant’s mobile phone “providing directions to a destination in the background”. On questioning, the applicant told SC Nielsen they had arrived in Brisbane that morning and had “come up here to buy a car”. When asked “where from”, the applicant replied, “Don’t know, haven’t found one yet”. According to his statement, SC Nielsen formed the impression whilst speaking to the applicant that he “continually tried to avoid our questions and get back to asking where a main road was to take them out of West End”. He also had the impression that the other male occupants in the vehicle were “avoiding eye contact”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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