R v Varga - [2015] QDC 82

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Varga [2015] QDC 82

PARTIES:

R.
(Respondent)

v

BENJAMIN JULIAN VARGA
(Applicant)

FILE NO/S:

Townsville 267/14

DIVISION:

Criminal

PROCEEDING:

Pre-Trial Application

ORIGINATING COURT:

District Court Townsville

DELIVERED ON:

17 April 2015

DELIVERED AT:

Townsville

HEARING DATE:

24 October 2014

JUDGE:

Durward SC DCJ

ORDERS:

Application refused.1.

Evidence of SMS text messages and admissions and confessions by the accused with respect to the charges of trafficking in, and supply of, a dangerous drug and possession of a thing used in connection with trafficking in a dangerous drug, was lawfully obtained and is admissible. 2.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE UNLAWFULLY OBTAINED – ADMISSIONS & CONFESSIONS - search warrant issued by justice of the peace – whether police authorised to search contents of a storage device (mobile phone) seized in a search – whether s 154 Police Powers and Responsibilities Act 2000 enlivened – whether general power otherwise to access electronically stored information on a storage device, without requesting or receiving permission to do so – where police accessed the mobile phone and the information stored on it with the cooperation and consent of the accused - whether information in SMS text messages lawfully obtained – where the significant charges of trafficking and supply are made on evidence of SMS text messages in mobile phone - alternatively if unlawfully obtained, whether admissible in exercise of discretion – observations about considerations from case to case that reflect different facts and circumstances.

LEGISLATION:

Sections 98 and 130 Evidence Act 1977; Sections 150AA, 150(1), 154 and 156(3) Police Powers Responsibilities Act 2000.

CASES:

Bunning v Cross (1978) 141 CLR 54; R v Munck [2010] QSC 416; R v Christensen [2005] QSC 279; R v Peirson [2014] QSC 134; R v LR [2008] 1 Qd R 435; Darwen v Smith [2007] QDC 030; The Queen v Ireland (1970) 126 CLR 321; R v Bossley [2012] QSC 292; Malone v Metropolitan Police Commissioner [1979] Ch 344; Halliday v Nevill & Anor (1984) 155 CLR 1; Coco v R (1994) 179 CLR 427.

COUNSEL:

AW Collins of counsel for the Applicant
Ms A Payne for the Respondent

SOLICITORS:

Connolly Suthers Lawyers for the Applicant
Office of the Director of Public Prosecutions for the Respondent.

The applicant Benjamin Julian Varga (“the accused”) is charged with one count of trafficking in a dangerous drug, ten counts of supplying a dangerous drug, one count of possessing a dangerous drug and one count of possessing a thing used in connection with trafficking in a dangerous drug.

This pre-trial application is primarily about whether the police, in executing a lawfully issued search warrant, exceeded the power provided by the search warrant, by accessing information on a mobile phone that was found by police in the search of a residential premises.

The Search: synopsis

The search warrant authorised a search power, inter alia, to seize property found…

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 Varga

Details

AGLC: R v Varga [2015] QDC 82
Case: [2015] QDC 82
Decision Date: 17 April 2015

CaseChat Overview and Summary

The case of R v Varga involved the respondent, Varga, who was facing charges related to the trafficking and supply of dangerous drugs, as well as possession of an item used in connection with trafficking. The primary issue was whether the evidence, which included SMS text messages found on a mobile phone, was lawfully obtained and therefore admissible in court. This was contingent upon whether the police had the legal authority to search the contents of the storage device seized during the arrest, and whether the information was obtained with the respondent's consent.

The legal issues at hand were whether the search warrant issued by a justice of the peace authorised the police to search the contents of the storage device, specifically the mobile phone. Additionally, the court had to determine if section 154 of the Police Powers and Responsibilities Act 2000 applied, which would allow police to access electronically stored information on a storage device without seeking permission. The court also had to consider whether the information obtained from the mobile phone was lawfully obtained if the police accessed it with the respondent's cooperation and consent. If the information was determined to be unlawfully obtained, the court needed to decide whether it should be admitted in the exercise of its discretion, taking into account the unique facts and circumstances of the case.

The court held that the evidence, including the SMS text messages, was lawfully obtained because the police had the cooperation and consent of the respondent when accessing the mobile phone. The court found that the search warrant did not explicitly cover the search of the mobile phone, but the consent given by the respondent to access the phone rendered the search lawful. The court also noted that the general power to access electronically stored information on a storage device did not apply in this instance, as the police had the respondent's consent. Consequently, the evidence was admissible. The court emphasised that each case must be assessed on its own facts and circumstances when considering the admissibility of unlawfully obtained evidence.

The orders made by the court were that the application to exclude the evidence was refused, and the evidence, including the SMS text messages and admissions and confessions by the accused, was deemed lawfully obtained and admissible in the trial.

Orders

Orders of the court

Application refused.1.

Evidence of SMS text messages and admissions and confessions by the accused with respect to the charges of trafficking in, and supply of, a dangerous drug and possession of a thing used in connection with trafficking in a dangerous drug, was lawfully obtained and is admissible. 2.

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 Varga [2015] QDC 82
PARTIES:	R. (Respondent) v BENJAMIN JULIAN VARGA (Applicant)
FILE NO/S:	Townsville 267/14
DIVISION:	Criminal
PROCEEDING:	Pre-Trial Application
ORIGINATING COURT:	District Court Townsville
DELIVERED ON:	17 April 2015
DELIVERED AT:	Townsville
HEARING DATE:	24 October 2014
JUDGE:	Durward SC DCJ
ORDERS:	Application refused.1. Evidence of SMS text messages and admissions and confessions by the accused with respect to the charges of trafficking in, and supply of, a dangerous drug and possession of a thing used in connection with trafficking in a dangerous drug, was lawfully obtained and is admissible. 2.
CATCHWORDS:	CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE UNLAWFULLY OBTAINED – ADMISSIONS & CONFESSIONS - search warrant issued by justice of the peace – whether police authorised to search contents of a storage device (mobile phone) seized in a search – whether s 154 Police Powers and Responsibilities Act 2000 enlivened – whether general power otherwise to access electronically stored information on a storage device, without requesting or receiving permission to do so – where police accessed the mobile phone and the information stored on it with the cooperation and consent of the accused - whether information in SMS text messages lawfully obtained – where the significant charges of trafficking and supply are made on evidence of SMS text messages in mobile phone - alternatively if unlawfully obtained, whether admissible in exercise of discretion – observations about considerations from case to case that reflect different facts and circumstances.
LEGISLATION:	Sections 98 and 130 Evidence Act 1977; Sections 150AA, 150(1), 154 and 156(3) Police Powers Responsibilities Act 2000.
CASES:	Bunning v Cross (1978) 141 CLR 54; R v Munck [2010] QSC 416; R v Christensen [2005] QSC 279; R v Peirson [2014] QSC 134; R v LR [2008] 1 Qd R 435; Darwen v Smith [2007] QDC 030; The Queen v Ireland (1970) 126 CLR 321; R v Bossley [2012] QSC 292; Malone v Metropolitan Police Commissioner [1979] Ch 344; Halliday v Nevill & Anor (1984) 155 CLR 1; Coco v R (1994) 179 CLR 427.
COUNSEL:	AW Collins of counsel for the Applicant Ms A Payne for the Respondent
SOLICITORS:	Connolly Suthers Lawyers for the Applicant Office of the Director of Public Prosecutions for the Respondent.