R v Pohl

[2014] QSC 173

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pohl [2014] QSC 173

PARTIES:

R
v
POHL, Luke George
(applicant)

FILE NO:

534 of 2013

DIVISION:

Trial Division

PROCEEDING:

590AA Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

4 August 2014

JUDGE:

Daubney J

ORDER:

THE EVIDENCE OBTAINED AGAINST THE APPLICANT IN THE SEARCH OF THE HOLDEN RODEO VEHICLE REGISTRATION 951 RVY, ON 1 DECEMBER 2012 IS TO BE EXCLUDED.  

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – ILLEGALLY OBTAINED EVIDENCE – GENERALLY – where applicant charged with possession of a dangerous drug in excess of 2.0 grams – where police officers conducted unlawful search of the applicant’s vehicle – where the search was later authorised by a Post-Search Approval Order – whether the court’s discretion should be exercised to exclude the evidence

Police Powers and Responsibilities Act 2000 (Qld) ss 29, 31 and 160

Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22, cited
DPP v Nicholls (2001) 123 A Crim R 66; [2001] NSWSC 523, cited
R v Versac [2013] QSC 46, followed

The Queen v Ireland (1970) 126 CLR 321; [1970] HCA 21, cited

COUNSEL:

R Frigo for the applicant

M Connolly for the respondent

SOLICITORS:

Potts Lawyers for the applicant

Director of Public Prosecutions (Qld) for the respondent

1. Luke George Pohl (“the applicant”) has been charged with possessing the dangerous drug cocaine in a quantity in excess of 2.0 grams.  The applicant seeks the exclusion of evidence concerning the discovery of the cocaine on the grounds that the police search which uncovered the cocaine was unlawful and the Court ought to exercise the discretion to exclude such evidence from the applicant’s trial.

Background

1. On the evening of the 1^st December 2012 at approximately 7pm Plain Clothes Senior Constable Michael Simmonds (“Simmonds”) and Plain Clothes Senior Constable David Paddock (“Paddock”) entered the rear of the Wallaby Hotel, Mudgeeraba. With them were several other police officers, including officers from the Coomera Dog squad.  

1. The entry of the officers into the hotel was preceded by two hours of static police surveillance from the hotel car park.[1] The surveillance began when the police received an anonymous tip that the Wallaby Hotel was the chosen location for a Mr Matthew Jones to buy two kilos of the drug known as ‘ice’ that afternoon.[2] It was known to the police that Jones was part of an outlaw motorcycle gang. Simmonds and Paddock entered the hotel to find Jones.

   [1]Application for Post-Search Approval Order, p 2.

   [2]Respondent’ submissions, filed by leave on 4 August 2014, [3].

1. As officers entered the hotel, three males quickly decamped from the public bar. These three were pursued by officers, some on foot, Simmonds in an unmarked police car. While this chase was underway Paddock remained at the hotel and reviewed the CCTV footage of the hotel on that afternoon. Paddock identified a man he believed…