R v NAA - [2011] QDC 260

DISTRICT COURT OF QUEENSLAND

CITATION:

R v NAA [2011] QDC 260

PARTIES:

R

v

NAA

FILE NO/S:

Indictment No 205 of 2011

PROCEEDING:

Pre-trial hearing – objection to admissibility of evidence

DELIVERED ON:

17 October 2011

DELIVERED AT:

Southport

HEARING DATES:

11-12 August and 17 October 2011

JUDGE:

Judge C.F. Wall Q.C.

RULING:

Evidence excluded

CATCHWORDS:

Evidence – Criminal Law – objection to admissibility of evidence – search of defendant’s premises – consent for search refused – purported use of emergent search powers – absence of reasonable suspicion that defendant would have concealed or destroyed property – no basis for post-search approval order – property obtained as a result of illegal search – deliberate disregard of law – evidence excluded

LEGISLATION:

Police Powers and Responsibilities Act ss 160, 161, 162, 403

CASES:

R v J W Williamson [2009] QSC 434
Ridgeway v R (1995) 184 CLR 30-31

COUNSEL:

Mr Nick McGhee for the Crown

Mr David Funch for the Defendant

SOLICITORS:

DPP for the Crown
Howden Saggers for the Defendant

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE C.F. WALL QC

Indictment No 205 of 2011

THE QUEEN

NAA

SOUTHPORT

..DATE 17/10/2011

..DAY 3

RULING

HIS HONOUR: NAA is charged with three offences. They are:

(1) That on a date unknown between the 28th day of June 2009 and the 5th day of April 2010 at the Gold Coast, he unlawfully and indecently dealt with NAB, a child under the age of 16, who was under the age of 12 and was his lineal descendant and who he had under his care.

(2) This is a further offence of the same nature.

(3) That between the 28th day of June 2009 and the 5th day of
April 2010 at the Gold Coast, he made child exploitation material.

The age of NAB at the relevant time was three years.

The defendant, of his own volution, went to the Broadbeach Police Station, to clear up a complaint which had been made by the mother of the child.

He lived alone at his premises and he suffered from a hearing impediment. He said in evidence that he was born hearing impaired, that he is currently 90 per cent deaf. He relies fully on hearing aids and on lip reading as well. He often gets words confused if they sound the same and he has to think about it for a while before he answers or understands what he is being asked.

Without hearing aids he hears nothing. With hearing aids, he hears sound, but it takes his eyes to decipher what sounds they are.

In a recorded test facing the person speaking, of a 100 words he got 23 words wrong. Turning around, the same sounding 100 words, he got 73 wrong, that’s if he wasn’t facing the speaker.

Plain clothes Senior Constable Lucas McCrae said that during the search of the defendant's premises the defendant seemed to understand what he was saying when he was speaking to him, because he answered all of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v NAA

Details

AGLC: R v NAA [2011] QDC 260
Case: [2011] QDC 260
Decision Date: 17 October 2011

CaseChat Overview and Summary

The case of R v NAA involved a defendant whose premises were searched by police. The defendant refused consent to the search. The police claimed they were using emergent search powers, asserting a reasonable suspicion that the defendant would have concealed or destroyed property. The defendant objected to the admissibility of evidence obtained during the search, arguing it was the result of an illegal search. The court was required to decide whether the police's actions were justified under emergent search powers and whether the evidence obtained should be excluded.

The legal issues before the court were whether the police had a reasonable suspicion to justify the use of emergent search powers and whether the evidence obtained should be excluded due to the illegal nature of the search. The court examined the circumstances under which emergent search powers could be invoked, focusing on the requirement for a reasonable suspicion that the defendant would have concealed or destroyed property. The court also considered the absence of a post-search approval order and the deliberate disregard of the law by the police.

The court concluded that the police did not have a reasonable suspicion that the defendant would have concealed or destroyed property, and thus, the emergent search powers were not appropriately invoked. The court further held that there was no basis for a post-search approval order given the circumstances. Consequently, the evidence obtained as a result of the illegal search was excluded from the trial. The court found that the police's actions amounted to a deliberate disregard of the law, which warranted the exclusion of the evidence.

The final orders of the court were that the evidence obtained during the illegal search of the defendant's premises was excluded from the trial. The court emphasised the importance of adhering to legal procedures, particularly in criminal proceedings, and underscored the consequences of disregarding established legal frameworks.

Orders