R v Nguyen

[2016] QSC 207

SUPREME COURT OF QUEENSLAND

CITATION:

R v Nguyen [2016] QSC 207

PARTIES:

THE QUEEN
v
VAN TUAN NGUYEN

(applicant)

FILE NO/S:

SC No 946 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

21 June 2016

JUDGE:

Dalton J

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – where police officers conducted a search of the applicant – where the applicant was charged with various drug offences – where the applicant contends that the police detention and search was unlawful because no reasonable suspicion was held by the police officers before the applicant was detained and searched – whether the police officers properly exercised their powers under s 29(1) of the Police Powers and Responsibilities Act 2000 (Qld)

Police Powers and Responsibilities Act 2000 (Qld), s 29(1)

R v Fuentes [2012] QSC 288, cited

COUNSEL:

CJ Cassidy for the applicant

RA Swanwick for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Director of Public Prosecutions (Queensland) for the respondent

1. This is an application to exclude evidence of drugs located by police when searching a bag carried by the defendant on 4 September 2014. There were substantial quantities of methyl‑amphetamine and heroin in the bag. The basis of the application is that the police detention and search was unlawful because there was no reasonable suspicion held by the police before the defendant was detained and searched. The relevant section is s 29(1) of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA):

   “(1)   A police officer who reasonably suspects any of the prescribed circumstances for searching a person without a warrant exist may, without a warrant, do any of the following –

   (a)stop and detain a person;

   (b)search the person and anything in the person’s possession for anything relevant to the circumstances for which the person is detained.”

   Section 30 of the PPRA defines the “prescribed circumstances” and they include that the person has something that may be an unlawful dangerous drug.

2. The facts as to the defendant’s interaction with the police are contentious.  I heard evidence from Senior Constables Spencer and Auld, stationed at Inala, and Detective Senior Constable Behnke, of the Acacia Ridge CIB.  I thought all three did their best to honestly recall what had transpired on 4 September 2014.

3. On 4 September 2014 at about 3.00 pm Senior Constables Auld and Spencer were on uniformed patrol in Inala.  They were driving a police car.  They saw three men; the defendant and another man of Asian appearance, Beh, in the company of a man of Islander appearance who they both swore they recognised as one Tuioti, a drug dealer.  As it turned out they were wrong about this; the man was not Mr Tuioti.  The three men were walking together in the street towards a house located at 1 Sunbird Street, Inala.  The police drove past…