R v Toon - [2015] QSC 117

SUPREME COURT OF QUEENSLAND

CITATION:

R v Toon [2015] QSC 117

PARTIES:

THE QUEEN

(Respondent)

v
DANIEL STEWART TOON

(Applicant)

FILE NO/S:

SC No 17 of 2014

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Mackay

HEARING DATE:

15 April 2015

DELIVERED EX TEMPORE ON: 15 April 2015

DELIVERED AT:

Mackay

JUDGE:

Henry J

ORDER:

1. The application is upheld.

2. The evidence of what was found in the search of the motor vehicle is excluded from the evidence that can be adduced in this case.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – ILLEGALLY OBTAINED EVIDENCE – where the police officer searched a motor vehicle without a warrant – where the officer was granted a post-search approval warrant – whether the search undertaken without warrant needed to be conducted urgently in order to prevent loss of, or interference with, evidence - whether the search involved a deliberate or reckless disregard of the law

Police Powers and Responsibilities Act, s 31(3), s 161

Bunning v Cross (1977/78) 141 CLR 54, considered
R v Fuentes (2012) QSC 288, cited
R v Pohl (2014) QSC 173, cited
R v Versac (2013) QSC 46, considered
R v Williamson (2009) QSC 434, cited

COUNSEL:

BJ Hartigan for the applicant

SJ Hedge for the respondent

SOLICITORS:

Morton Lawyers for the applicant

Office of the Director of Public Prosecutions for the respondent

HIS HONOUR: This is an application to exclude evidence of the finding of items in the search of a Toyota Kluger motor vehicle on the 8^th of November 2013. The fruits of that search give rise to two of the three drug offence counts on the indictment presently before the Court. The applicant defendant has pleaded guilty to the remaining count.

Facts

Early on the morning of the 8^th of November 2013 police were called to a disturbance at room 210 of the Windmill Hotel in the suburb of Mount Pleasant at Mackay.
A female, Katrina McDonald, answered the door. She had a laceration to her forehead. Police announced they were entering the unit under the Domestic and Family Violence Protection Act. Some green leaf material, presumably cannabis, and a used needle and syringe were on the kitchen table. The unit was searched for other persons and the applicant was found hiding in the bathroom. He was detained under the Domestic and Family Violence Protection Act and taken outside.
It was discovered he was wanted on a warrant. He tried to flee but was caught and placed under arrest in respect of the warrant. His person was searched and various items, including car keys, were found. He was processed at the watch house and remained in custody. He later declined questioning.
Meanwhile, back at the unit other drug-related items and a loaded handgun were found. There is evidence to suggest other citizens earlier in the day witnessed the applicant in possession of a handgun.
The uniformed constable who had conducted the pat-down search…

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 Toon

Details

AGLC: R v Toon [2015] QSC 117
Case: [2015] QSC 117
Decision Date: 15 April 2015

CaseChat Overview and Summary

In the case of R v Toon, the defendant was subject to a search of his motor vehicle by a police officer without a warrant. The search subsequently received post-search approval. The defendant contested the admissibility of the evidence obtained from the search, arguing it was obtained unlawfully. The matter was heard in the Supreme Court, where the central issue was whether the evidence should be excluded due to the lack of a warrant and whether the search could be justified as urgent to prevent the loss or interference with evidence.

The court needed to determine if the search was conducted without a deliberate or reckless disregard for the law. The defendant contended that the search was unlawful and amounted to a deliberate disregard for his legal rights. The prosecution argued that the urgency of the situation justified the warrantless search. The court considered the nature of the evidence, the circumstances surrounding the search, and the potential impact of allowing such searches without warrants. It examined whether the police officer's actions were justified under any exception to the warrant requirement, such as exigent circumstances.

The court found that the search was not conducted urgently enough to prevent loss or interference with evidence and that the officer's actions demonstrated a deliberate disregard for the legal requirement of a warrant. Consequently, the court exercised its discretion under the relevant provisions to exclude the evidence obtained from the search. The court concluded that allowing such evidence would undermine the integrity of the legal process and set a dangerous precedent for future cases.

The court upheld the application to exclude the evidence, ordering that the evidence obtained from the search of the motor vehicle be excluded from the evidence that could be adduced in the case. This decision underscores the importance of adhering to legal protocols in law enforcement and the courts' commitment to upholding the rule of law.

Orders

Orders of the court

1. The application is upheld.

2. The evidence of what was found in the search of the motor vehicle is excluded from the evidence that can be adduced in this case.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The events associated with the application for post-search approval also fortify my reluctance in this case to forgo deterring unlawfulness of the kind that occurred on the 8th and my reluctance to be seen as condoning it. Conclusion Weighing up all of the considerations for and against causes me to conclude, in the exercise of my discretion, that the evidence of what was found in the search of the motor vehicle should be excluded from the evidence that can be adduced in this case. The application is upheld.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	*R v Toon* [2015] QSC 117
PARTIES:	THE QUEEN (Respondent) v DANIEL STEWART TOON (Applicant)
FILE NO/S:	SC No 17 of 2014
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Mackay
HEARING DATE:	15 April 2015
DELIVERED EX TEMPORE ON:	15 April 2015
DELIVERED AT:	Mackay
JUDGE:	Henry J
ORDER:	1. The application is upheld. 2. The evidence of what was found in the search of the motor vehicle is excluded from the evidence that can be adduced in this case.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – ILLEGALLY OBTAINED EVIDENCE – where the police officer searched a motor vehicle without a warrant – where the officer was granted a post-search approval warrant – whether the search undertaken without warrant needed to be conducted urgently in order to prevent loss of, or interference with, evidence - whether the search involved a deliberate or reckless disregard of the law Police Powers and Responsibilities Act, s 31(3), s 161 Bunning v Cross (1977/78) 141 CLR 54, considered R v Fuentes (2012) QSC 288, cited R v Pohl (2014) QSC 173, cited R v Versac (2013) QSC 46, considered R v Williamson (2009) QSC 434, cited
COUNSEL:	BJ Hartigan for the applicant SJ Hedge for the respondent
SOLICITORS:	Morton Lawyers for the applicant Office of the Director of Public Prosecutions for the respondent