R v Van Hass - [2023] QSC 88

SUPREME COURT OF QUEENSLAND

CITATION:

R v Van Hass [2023] QSC 88

PARTIES:

R

(Respondent)
v

VAN HASS, Quentin Adam

(Applicant Defendant)

FILE NO/S:

No 12 of 2023

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:
Supreme Court at Cairns

DELIVERED ON:

4 May 2023

DELIVERED AT:

Cairns

HEARING DATE:

21 March 2023

JUDGE:

Henry J

ORDER:

1. Application dismissed.

CATCHWORDS:

CRIMINAL LAW — PROCEDURE — WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS — SEARCH AND SEIZURE — SEARCH OF MOTOR VEHICLE WITHOUT WARRANT — WHETHER UNLAWFUL — REQUIREMENTS FOR SEARCH — WHETHER REASONABLE SUSPICION OF PRESCRIBED CIRCUMSTANCE — WHETHER PERSON DETAINED WAS OCCUPANT OF VEHICLE —where applicant filed application pursuant to s 590AA of the Criminal Code to exclude evidence found in searches – where the applicant is charged with various drug offences – where the applicant’s vehicle was subject to a search without warrant under s 31(1) Police Powers and Responsibilities Act – whether the applicant was an “occupant” of the vehicle per s 31(1) when he was not within the vehicle – whether there existed a reasonable suspicion per s 31(1)

Human Rights Act 2019 (Qld)

Police Powers and Responsibilities Act 2000 (Qld) ss 31, 32

George v Rockett (1990) 170 CLR 104

Potter v Minahan (1908) 7 CLR 277

R v A2 (2019) 269 CLR 507

R v Keen [2016] 2 Qd R 1

R v Wassmuth; Ex Parte Attorney-General (Qld) [2022] QCA 113

Ridgeway v R (1995) 184 CLR 19

COUNSEL:
S Cupina for respondent prosecution

J Trevino KC for applicant defendant

SOLICITORS:
Office of the Director of Public Prosecutions (Queensland) for respondent prosecution

Legal Aid Queensland for applicant defendant

The defendant applicant is charged with possession of a substantial quantity of methylamphetamine and some cannabis, found during a police search of his car in suburban Cairns at 11.00 pm on Sunday, 3 April 2022. This discovery later led to a search of the defendant’s home on 29 April 2022, where more methylamphetamine and cannabis was found and he refused to provide access codes to two mobile phones, evidence from at least one of which ultimately revealed two drug supplies.
The vehicle search was conducted without a search warrant. The applicant seeks a pretrial ruling, excluding all evidence of what was found in the vehicle search as well as the evidence resulting from the search of his home. He contends the search of the vehicle was unlawful, with the consequence that the evidence obtained during it was unlawfully obtained. He also contends the evidence obtained during the search of his home was unlawfully obtained because that search was a consequence of the allegedly unlawful search of his vehicle.
The vehicle search is said to have been unlawful because two of the statutory requirements for the search without warrant of the vehicle were not met, in that:
(a)there was not the requisite reasonable suspicion for a search without warrant; and
(b)the defendant was not an “occupier” of the vehicle, because he had alighted from his vehicle before…

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 Van Hass

Details

AGLC: R v Van Hass [2023] QSC 88
Case: [2023] QSC 88
Decision Date: 4 May 2023

CaseChat Overview and Summary

The case of R v Van Hass involved the applicant seeking to exclude evidence obtained through a search of his motor vehicle without a warrant under section 31(1) of the Police Powers and Responsibilities Act. The applicant was charged with various drug offences. The primary issue before the court was whether the search was lawful given the applicant was not an occupant of the vehicle at the time of the search and whether there was a reasonable suspicion of a prescribed circumstance.

The court examined the requirements for a lawful search under section 31(1), focusing on whether the applicant was an occupant of the vehicle and whether there existed a reasonable suspicion as required by the statute. The court determined that the applicant was not an occupant of the vehicle at the time of the search, but this alone did not render the search unlawful. The court further assessed whether there was a reasonable suspicion of a prescribed circumstance that would justify the search, concluding that the search was indeed lawful based on the presence of reasonable suspicion.

The court's reasoning concluded that both the arguments that the search was unlawful failed. The court held that since the search was lawful, it was not necessary to determine the discretionary considerations for excluding the evidence if the search had been unlawful. The rationale for excluding evidence in cases of unlawful search was discussed, referencing Ridgeway v R, but the court found it impractical to resolve the discretionary exclusion without knowing the specific circumstances of the unlawfulness.

The final order of the court was to dismiss the application to exclude the evidence obtained from the search, as the search was deemed lawful under the Police Powers and Responsibilities Act.

Orders

Orders of the court

1. Application dismissed.

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

It follows the second basis of complaint that the search was unlawful has also failed. Should these reasons deal with whether discretionary considerations would have resulted in the application succeeding or failing if the search was unlawful? I have concluded the search was lawful. Argument in the present case was also advanced as to whether I should exclude the evidence in the exercise of my discretion in the event I concluded the search was unlawful. The rationale for such exclusion would be that the desirable goal of bringing a wrongdoer to conviction is outweighed by the undesirable effect of giving curial approval or encouragement to the unlawful conduct of those tasked to enforce the law.[10][10]Ridgeway v R (1995) 184 CLR 19, 30-31. It is desirable where practicable for judges to resolve all potentially determinative arguments before them in case their determination of only some arguments is reversed on appeal. It is not practicable to resolve how the discretion to exclude would be exercised here if the search was unlawful. That is because the unlawfulness arguments did not turn upon a singular circumstance so it is not possible to know the character of the unlawfulness which would need to be assumed for the purposes of determining the discretionary exclusion argument. Orders Both arguments that the search was unlawful having failed, my order is:Application dismissed.

CITATION:	R v Van Hass [2023] QSC 88
PARTIES:	R (Respondent) v VAN HASS, Quentin Adam (Applicant Defendant)
FILE NO/S:	No 12 of 2023
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	4 May 2023
DELIVERED AT:	Cairns
HEARING DATE:	21 March 2023
JUDGE:	Henry J
ORDER:	1. Application dismissed.
CATCHWORDS:	CRIMINAL LAW — PROCEDURE — WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS — SEARCH AND SEIZURE — SEARCH OF MOTOR VEHICLE WITHOUT WARRANT — WHETHER UNLAWFUL — REQUIREMENTS FOR SEARCH — WHETHER REASONABLE SUSPICION OF PRESCRIBED CIRCUMSTANCE — WHETHER PERSON DETAINED WAS OCCUPANT OF VEHICLE —where applicant filed application pursuant to s 590AA of the Criminal Code to exclude evidence found in searches – where the applicant is charged with various drug offences – where the applicant’s vehicle was subject to a search without warrant under s 31(1) Police Powers and Responsibilities Act – whether the applicant was an “occupant” of the vehicle per s 31(1) when he was not within the vehicle – whether there existed a reasonable suspicion per s 31(1) Human Rights Act 2019 (Qld) Police Powers and Responsibilities Act 2000 (Qld) ss 31, 32 George v Rockett (1990) 170 CLR 104 Potter v Minahan (1908) 7 CLR 277 R v A2 (2019) 269 CLR 507 R v Keen [2016] 2 Qd R 1 R v Wassmuth; Ex Parte Attorney-General (Qld) [2022] QCA 113 Ridgeway v R (1995) 184 CLR 19
COUNSEL:	S Cupina for respondent prosecution J Trevino KC for applicant defendant
SOLICITORS:	Office of the Director of Public Prosecutions (Queensland) for respondent prosecution Legal Aid Queensland for applicant defendant