R v P & Anor

Case [2016] QSC 49

SUPREME COURT OF QUEENSLAND

CITATION:

R v P & Anor [2016] QSC 49

PARTIES:

THE QUEEN

(respondent)

v
P

(applicant)
and
N
(applicant)

FILE NO:

Indictment 596 of 2015

DIVISION:

Trial Division

PROCEEDING:

Section 590AA application to exclude evidence

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

14 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

16 December 2015 and 26 February 2016

JUDGE:

Applegarth J

ORDER:

1.   The evidence obtained from and during a search by police of a Toyota Hi-Ace van, parked in the driveway of 62 Jordan Street, Richlands in the State of Queensland on 11 July 2014, and prior to the execution of the search warrant obtained at around 7.40 pm on 11 July 2014, be excluded from evidence to be admitted at the applicants’ trial.  The evidence so excluded includes evidence of police officers of what was observed or seized by them in the course of carrying out a search of the vehicle without a warrant on the afternoon and evening of 11 July 2014.

2.   Liberty to apply.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – SEARCH WARRANTES – EXECUTION – EMERGENT SEARCH -  where police searched unoccupied vehicle – where police lacked authority under Police Powers and Responsibilities Act 2000 (Qld), s 31 because “the vehicle and its occupants had not been detained – whether police officer suspected that drugs may be concealed or destroyed unless the van was “immediately entered and searched” – whether any such suspicion was reasonable in the circumstances

CRIMINAL LAW – PROCEDURE – SEARCH WARRANTS – ISSUE – POST-SEARCH APPROVAL ORDER – where post-search approval application not made until 28 days after asserted power to search without warrant exercised – whether application was made “as soon as reasonably practicable”

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – ILLEGALLY OBTAINED EVIDENCE – GENERALLY – where the applicants charged with possession of dangerous drugs – where police officers conducted unlawful search of unoccupied vehicle – whether action of police officers was reckless – whether discretion to exclude evidence should be exercised

Police Powers and Responsibilities Act 2000 (Qld), s 29, s 30, s 31, s 31(1), s32, s 160, s 160(1), s 160(3), s 161, s 161(1)

Evidence Act 1995 (NSW), s 138(3)(c)

Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22, cited
Burdeau v McDowell, 256 U.S. 465 (1921), cited
DPP v Leonard (2001) 53 NSWLR 227; [2001] NSWSC 797, cited
DPP v Nicholls (2001) 123 A Crim R 66; [2001] NSWSC 523, cited
George v Rockett (1990) 170 CLR 104, cited
Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9, cited
Olmstead v United States, 277 U.S. 438 (1928), cited
Pollard v The Queen (1997) 176 CLR 177; [1992] HCA 69, cited
R v Christensen (2005) 157 A Crim R 297; [2005] QSC 279, cited
R v Dalley (2002) 132 A Crim R 169; [2002] NSWCCA…

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AGLC
R v P [2016] QSC 49
Case
[2016] QSC 49
Decision Date

CaseChat Overview and Summary

In the case of R v P & Anor, the applicants were charged with possession of dangerous drugs, and they sought to have evidence obtained from an unlawful search of their vehicle excluded. The vehicle, a Toyota Hi-Ace van, was parked in the driveway of 62 Jordan Street, Richlands in Queensland. The police conducted a search of the van without a warrant, claiming that they suspected drugs might be concealed or destroyed if they did not act immediately. The applicants argued that the search was unlawful, and that any evidence obtained as a result should be excluded from their trial.

The legal issues before the court included whether the police officers' suspicion that drugs might be concealed or destroyed was reasonable, and whether the officers had authority to conduct the search under section 31 of the Police Powers and Responsibilities Act 2000 (Qld). Additionally, the court had to consider whether the post-search approval application was made "as soon as reasonably practicable," given that it was not made until 28 days after the search. Finally, the court had to determine whether the evidence obtained from the unlawful search should be excluded from the trial under the general discretion to admit or exclude evidence.

The court found that the police officers did not have authority to conduct the search under section 31 of the Act because the vehicle and its occupants had not been detained. The court also found that the officers' suspicion that drugs might be concealed or destroyed was not reasonable in the circumstances. The court held that the post-search approval application was not made "as soon as reasonably practicable," and that the discretion to exclude evidence should be exercised. Accordingly, the evidence obtained from the unlawful search was excluded from the applicants' trial.

The court ordered that the evidence obtained from and during the search of the van be excluded from evidence to be admitted at the applicants’ trial. The applicants were granted liberty to apply for further orders.

Orders

Orders of the court

1. The evidence obtained from and during a search by police of a Toyota Hi-Ace van, parked in the driveway of 62 Jordan Street, Richlands in the State of Queensland on 11 July 2014, and prior to the execution of the search warrant obtained at around 7.40 pm on 11 July 2014, be excluded from evidence to be admitted at the applicants’ trial. The evidence so excluded includes evidence of police officers of what was observed or seized by them in the course of carrying out a search of the vehicle without a warrant on the afternoon and evening of 11 July 2014.

2. Liberty to apply.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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