R v Swain - [2012] QSC 233

SUPREME COURT OF QUEENSLAND

CITATION:

R v Swain [2012] QSC 233

PARTIES:

R
v
MIKE CHARLES SWAIN
(applicant)

FILE NO/S:

226 of 2012

DIVISION:

Trial Division

PROCEEDING:

590AA Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

24 July 2012

JUDGE:

Martin J

ORDER:

Order that any evidence arising from the search of the vehicle be excluded in any trial which might take place on the basis of the current charge.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – GENERALLY – where police conducted search of applicant’s vehicle – whether police had reasonable suspicion to search the vehicle without a warrant – whether the search should have been carried out

Criminal Code, s 590AA
Police Powers and Responsibilities Act 2000, s 31

COUNSEL:

P J Wilson for the applicant
C N Kelly for the respondent

SOLICITORS:

Bosscher Lawyers for the applicant
The Office of Director of Public Prosecutions for the respondent

The applicant, Mike Charles Swain, seeks a ruling under s 590AA of the Criminal Code that evidence obtained as a result of a search of his vehicle conducted on 12 December 2008 be excluded from any trial of the charge that on that day he unlawfully had possession of the dangerous methylamphetamine.

At the hearing of the application, neither of the police officers who had been sought for cross-examination was able to attend. Both parties were content to proceed on the basis of the police officers’ written statements.

At 11.40pm on 12 December 2008, Constable Mitchell and three other police officers were conducting a foot patrol along Warner Street, Fortitude Valley. Constable Mitchell saw a maroon Suzuki Swift parked in a “police parking only” zone. The defendant was seated in the driver’s seat and he was the only occupant of the car.

Constable Mitchell’s written evidence was as follows:

“5.I then approached the vehicle and as I looked toward the defendant, I noticed that he was looking toward me. The defendant then immediately looked away and appeared extremely agitated and nervous.
…
7.I could see that the defendant was very nervous as his hands were shaking and his voice was breaking and had a discernible stutter.
8.I then said words to the effect of, ‘Because of the high levels of drug activity in the area and your nervous behaviour, I have a reasonable suspicion you may be in possession of a dangerous drug. I am now detaining you for the purpose of a search, ok?’ The defendant replied in the affirmative.”

A search was then undertaken of the applicant’s vehicle and of the applicant himself.

Another of the police officers present, Sergeant Marcum, gave the following evidence.

“5.I approached the vehicle with Constable MITCELL (sic). I saw the defendant looking at myself and MITCHELL. The defendant turned his head away as if looking away from us whilst looking back towards us with quick eye movements. The…

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 Swain

Details

AGLC: R v Swain [2012] QSC 233
Case: [2012] QSC 233
Decision Date: 31 August 2012

CaseChat Overview and Summary

The parties involved in the case were R (the prosecution) and Swain (the applicant). The dispute centred around the admissibility of evidence obtained during a search of the applicant's vehicle, which the applicant argued was conducted without a warrant and without reasonable suspicion. The case was heard in a relevant Australian court, presumably a higher court given the nature of the legal issues involved.

The legal issues before the court were whether the police had a reasonable suspicion to conduct a search of the applicant's vehicle without a warrant and whether the search was carried out in a manner that complied with the law. The applicant contended that the search was unlawful, as it was conducted without a warrant and without reasonable suspicion, and that any evidence obtained as a result of the search should be excluded from any trial on the current charge. The prosecution argued that the search was conducted lawfully and that the evidence obtained should be admitted.

The court found that the police did not have reasonable suspicion to conduct a search of the applicant's vehicle without a warrant, and that the search was therefore unlawful. The court further found that the evidence obtained during the search was unfair to admit and should be excluded from any trial on the current charge. The court exercised its discretion to exclude the evidence on the basis that it was obtained in an improper manner and would be unfair to the applicant if admitted.

The court ordered that any evidence arising from the search of the vehicle be excluded in any trial which might take place on the basis of the current charge. This decision reinforces the importance of police complying with the law when conducting searches and the court's willingness to exclude evidence obtained in an unlawful manner.

Orders

Orders of the court

Order that any evidence arising from the search of the vehicle be excluded in any trial which might take place on the basis of the current charge.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Swain [2012] QSC 233
PARTIES:	R v MIKE CHARLES SWAIN (applicant)
FILE NO/S:	226 of 2012
DIVISION:	Trial Division
PROCEEDING:	590AA Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	31 August 2012
DELIVERED AT:	Brisbane
HEARING DATE:	24 July 2012
JUDGE:	Martin J
ORDER:	Order that any evidence arising from the search of the vehicle be excluded in any trial which might take place on the basis of the current charge.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – GENERALLY – where police conducted search of applicant’s vehicle – whether police had reasonable suspicion to search the vehicle without a warrant – whether the search should have been carried out Criminal Code, s 590AA Police Powers and Responsibilities Act 2000, s 31
COUNSEL:	P J Wilson for the applicant C N Kelly for the respondent
SOLICITORS:	Bosscher Lawyers for the applicant The Office of Director of Public Prosecutions for the respondent