R v N

[2015] QSC 91

SUPREME COURT OF QUEENSLAND

CITATION:

R v N  [2015] QSC 91

PARTIES:

R
(respondent)
v
N

(accused/applicant)

FILE NO/S:

SC No 432 of 2014

DIVISION:

Trial Division

PROCEEDING:

Pre-Trial Hearing

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 April 2015

DELIVERED AT:

Brisbane

HEARING DATE:

27 January 2015

JUDGES:

Carmody CJ

ORDERS:

1.   The application for exclusion of the seized mobile phone, and any information or data contained or recorded in the mobile phone, is allowed.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – PRE-TRIAL APPLICATION – EXCLUSION OF EVIDENCE ON PUBLIC POLICY GROUNDS – EMERGENT POLICE SEARCH AND SEIZURE – where applicant indicted for drug trafficking and supply – where applicant filed application under s 590AA for exclusion of mobile phone – where mobile phone obtained during emergent police search and seizure – whether emergent police search and seizure unlawful or improper – whether the mobile phone obtained through an unlawful search and seizure should be excluded on public policy grounds.

Evidence Act 1995 (Cth)

Police Powers and Responsibilities Act 2000 (Qld)

Ghani v Jones [1969] 3 All ER 1700, considered
Goldie v Commonwealth of Australia [2002] FCA 433; (2002) 117 FCR 566, considered
R v Pohl [2014] QSC 173, considered
R v Rondo [2001] NSWCCA 540, considered

COUNSEL:

P J Callaghan SC for the applicant
G P Cash for the respondent

SOLICITORS:

Potts Lawyers for the applicant
Office of the Director of Public Prosecutions for the respondent

1. THE CHIEF JUSTICE: This is a contested pre-trial hearing of a s 590AA application for a ruling excluding iPhone data seized from the applicant (N) during a warrantless police search.

2. The sole issue is whether or not the iPhone product is “the tainted fruit” of a poisoned tree (an illegal search) and, if so, should be excluded from the evidence pool as contrary to public policy.

   The context

1. N and a group of her friends were detained by police in a city hotel room for an emergent search “in regard to drugs” ostensibly under the provisions of s 160 of the Police Powers and Responsibilities Act 2000 (Qld) (PPR Act).

1. The police were initially acting on a public nuisance complaint.  They also had information suggesting drug use in the room but did not make a pre-search application to a magistrate for a warrant for reasons of convenience and resource efficiency.

1. N was subjected to the indignity of a strip search by K which produced a negative result (the first search).  K was just following orders and held no personal suspicions about N having drugs.

1. Believing (wrongly) that drugs had been found elsewhere on the premises K proceeded to search N’s handbag for any illicit items (the second search).

1. She found $305.55 in cash and the iPhone.

1. Suspecting that the money was drug proceeds K seized the iPhone to search its database for any sign of use in connection with drug dealing and presumably to preserve any evidentiary material (the third search). 

1. Incriminating text messages found during the third…