R v Purdon - [2016] QSC 128

SUPREME COURT OF QUEENSLAND

CITATION:

R v Purdon [2016] QSC 128

PARTIES:

R

(respondent)

v
PURDON, Neal Alexander

(applicant)

FILE NO/S:

34 of 2016

DIVISION:

Trial Division

PROCEEDING:

Section 590AA Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED EX TEMPORE ON:

26 May 2016

DELIVERED AT:

Cairns

HEARING DATE:

26 May 2016

JUDGE:

Henry J

ORDER:

1. Application granted.

2. The evidence obtained as a result of the search of Mr Purdon on 28 February 2015 is excluded from evidence permitted to be led in any trial on charges that, on that day, he unlawfully had possession of dangerous drugs.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – SEARCH AND SEIZURE – where the applicant was charged with possession of unlawful dangerous drugs – where police observed the applicant enter a vehicle after leaving an address known to police – where the drugs were discovered as a result of a search of the applicant after the vehicle he was a passenger in had been intercepted by police – where the police interception of vehicle was not undertaken for any of prescribed purposes under s 60(3) of the Police Powers and Responsibilities Act 2000 (Qld) – where police allege the search of the vehicle and applicant was pursuant to ss 29, 31 and 32 of the Police Powers and Responsibilities Act 2000 (Qld) – where the applicant seeks an order that the evidence obtained as a result of the search be excluded – whether police had a reasonable suspicion that the applicant had possession of unlawful dangerous drugs pursuant to ss 29, 31 and 32 of the Police Powers and Responsibilities Act 2000 (Qld) – whether the search by police of the applicant that led to the police knowledge of the unlawful dangerous drugs was lawful

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – PARTICULAR CASES – where the applicant was charged with possession of unlawful dangerous drugs – where the evidence found and relied on in support of the charges was obtained through reliance on unlawfully obtained evidence – whether despite the unlawfulness of the obtaining of the evidence it ought be admitted – whether the public interest in the conviction of the applicant outweighs the public interest in the protection of citizens from unlawful police conduct in accordance with the exercise of the Bunning v Cross discretion

Police Powers and Responsibilities Act 2000 (Qld), s 29, s 31, s 32, s 60, Sch 6

Bunning v Cross (1978) 141 CLR 54, cited
George v Rockett (1990) 170 CLR 104, cited
R v Jaudzems [2014] QSC 74, cited

COUNSEL:

R Silva (sol) for the applicant

G Meoli for the respondent

SOLICITORS:

Wettenhall Silva Solicitors for the applicant

Director of Public Prosecutions for the respondent

HIS HONOUR: The applicant, Neal Alexander Purdon, is charged on an indictment before the Cairns Supreme Court with two offences, namely, possession…

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 Purdon

Details

AGLC: R v Purdon [2016] QSC 128
Case: [2016] QSC 128
Decision Date: 26 May 2016

CaseChat Overview and Summary

The case of R v Purdon involved the applicant, who was charged with possession of unlawful dangerous drugs. The applicant was observed by police entering a vehicle after leaving an address known to police. The drugs were discovered as a result of a search of the applicant after the vehicle he was a passenger in had been intercepted by police. The police interception of the vehicle was not undertaken for any of the prescribed purposes under s 60(3) of the Police Powers and Responsibilities Act 2000 (Qld). The applicant sought an order that the evidence obtained as a result of the search be excluded.

The legal issues before the court were whether the police had a reasonable suspicion that the applicant had possession of unlawful dangerous drugs pursuant to ss 29, 31 and 32 of the Police Powers and Responsibilities Act 2000 (Qld), and whether the search by police of the applicant that led to the police knowledge of the unlawful dangerous drugs was lawful. The court had to consider the Bunning v Cross discretion to exclude evidence obtained improperly. The court found that the police did not have a reasonable suspicion that the applicant had possession of unlawful dangerous drugs and that the search was not lawful. The court held that the evidence obtained as a result of the search of the applicant was obtained through reliance on unlawfully obtained evidence. The court found that the public interest in the protection of citizens from unlawful police conduct outweighed the public interest in the conviction of the applicant.

The court granted the application and excluded the evidence obtained as a result of the search of the applicant on 28 February 2015 from evidence permitted to be led in any trial on charges that, on that day, the applicant unlawfully had possession of dangerous drugs. The court exercised its discretion under s 138 of the Evidence Act 1977 (Qld) to exclude the evidence. The court found that the evidence was obtained through reliance on unlawfully obtained evidence and that the public interest in the protection of citizens from unlawful police conduct outweighed the public interest in the conviction of the applicant.

Orders

Orders of the court

1. Application granted.

2. The evidence obtained as a result of the search of Mr Purdon on 28 February 2015 is excluded from evidence permitted to be led in any trial on charges that, on that day, he unlawfully had possession of dangerous drugs.

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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CITATION:	R v Purdon [2016] QSC 128
PARTIES:	R (respondent) v PURDON, Neal Alexander (applicant)
FILE NO/S:	34 of 2016
DIVISION:	Trial Division
PROCEEDING:	Section 590AA Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED EX TEMPORE ON:	26 May 2016
DELIVERED AT:	Cairns
HEARING DATE:	26 May 2016
JUDGE:	Henry J
ORDER:	1. Application granted. 2. The evidence obtained as a result of the search of Mr Purdon on 28 February 2015 is excluded from evidence permitted to be led in any trial on charges that, on that day, he unlawfully had possession of dangerous drugs.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – SEARCH AND SEIZURE – where the applicant was charged with possession of unlawful dangerous drugs – where police observed the applicant enter a vehicle after leaving an address known to police – where the drugs were discovered as a result of a search of the applicant after the vehicle he was a passenger in had been intercepted by police – where the police interception of vehicle was not undertaken for any of prescribed purposes under s 60(3) of the Police Powers and Responsibilities Act 2000 (Qld) – where police allege the search of the vehicle and applicant was pursuant to ss 29, 31 and 32 of the Police Powers and Responsibilities Act 2000 (Qld) – where the applicant seeks an order that the evidence obtained as a result of the search be excluded – whether police had a reasonable suspicion that the applicant had possession of unlawful dangerous drugs pursuant to ss 29, 31 and 32 of the Police Powers and Responsibilities Act 2000 (Qld) – whether the search by police of the applicant that led to the police knowledge of the unlawful dangerous drugs was lawful CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – PARTICULAR CASES – where the applicant was charged with possession of unlawful dangerous drugs – where the evidence found and relied on in support of the charges was obtained through reliance on unlawfully obtained evidence – whether despite the unlawfulness of the obtaining of the evidence it ought be admitted – whether the public interest in the conviction of the applicant outweighs the public interest in the protection of citizens from unlawful police conduct in accordance with the exercise of the Bunning v Cross discretion Police Powers and Responsibilities Act 2000 (Qld), s 29, s 31, s 32, s 60, Sch 6 Bunning v Cross (1978) 141 CLR 54, cited George v Rockett (1990) 170 CLR 104, cited R v Jaudzems [2014] QSC 74, cited
COUNSEL:	R Silva (sol) for the applicant G Meoli for the respondent
SOLICITORS:	Wettenhall Silva Solicitors for the applicant Director of Public Prosecutions for the respondent