R v Watson - [2017] QSC 4

SUPREME COURT OF QUEENSLAND

CITATION:

R v Watson [2017] QSC 4

PARTIES:

SHANE PETER WATSON

(Applicant)

v
THE QUEEN

(Respondent)

FILE NO/S:

SC No 146 of 2016

DIVISION:

Trial

PROCEEDING:

Section 590AA Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

1 February 2017

DELIVERED AT:

Cairns

HEARING DATE:

18 & 30 January 2017

JUDGE:

Henry J

ORDER:

Application dismissed.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – SEARCH AND SEIZURE – where the applicant’s car and person were searched by police – where illegal drugs and other items were located – where police have a power under ss 29 and 31 Police Powers and Responsibilities Act 2000 (Qld) to search persons and vehicles without a warrant if they have a reasonable suspicion that prescribed circumstances exist – where the applicant alleges the police officer did not have reasonable grounds for the suspicion and the search was therefore unlawful – whether the evidence resulting from the search should be excluded on the basis it was improperly obtained

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – where the applicant was charged with possession of unlawful dangerous drugs and a Taser – whether if the evidence in support of the charges had been obtained unlawfully 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) ss 29, 31, 32, 60, sch 6

Bunning v Cross (1978) 141 CLR 54 applied
George v Rockett (1990) 170 CLR 104 applied

R v Ireland (1970) 126 CLR 321 applied

COUNSEL:

P Feeney for the applicant

E Coker for the respondent

SOLICITORS:

Wettenhall Silva for the applicant

Director of Public Prosecutions (Qld) for the respondent

The applicant defendant, Mr Watson, is charged with possession of methylamphetamine in excess of two grams and unlawful possession of a weapon, a form of conductive described in evidence as a taser. The methylamphetamine and taser were found in the course of a search of a vehicle he had been driving and of his person by police on 13 September 2015.
Mr Watson applies for an order excluding the evidence of the fruits of that search and Mr Watson’s response to police questioning during the search.
Mr Watson relies on the ground that there was no proper factual basis for the reasonable suspicion necessary for a lawful exercise of any search power.
It is necessary to determine whether or not the search was unlawful and, if it was unlawful, to determine whether, notwithstanding that unlawfulness, the evidence ought still be admitted in the exercise of my discretion.
Background
Senior Constables D and L, police officers with the Far Northern District Tactical Crime Squad, were conducting patrols in an unmarked police car in Cairns at about 1.25…

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 Watson

Details

AGLC: R v Watson [2017] QSC 4
Case: [2017] QSC 4
Decision Date: 1 February 2017

CaseChat Overview and Summary

The case of R v Watson involved a search of the applicant’s car and person by police officers, resulting in the discovery of illegal drugs and other items. The applicant argued that the police officer did not have reasonable grounds for the suspicion that warranted the search and therefore the search was unlawful. The case turned on whether the evidence resulting from the search should be excluded due to its improper acquisition.

The legal issues the court was required to decide were whether the police officers had a reasonable suspicion to conduct the search without a warrant under sections 29 and 31 of the Police Powers and Responsibilities Act 2000 (Qld) and whether the evidence obtained should be excluded if the search was unlawful. The court also had to consider whether, if the evidence was unlawfully obtained, the public interest in the conviction of the applicant outweighed the public interest in protecting citizens from unlawful police conduct.

The court examined the circumstances surrounding the search and concluded that the police officers had reasonable grounds to suspect that prescribed circumstances existed. The court found that the officers' suspicions were aroused by the applicant's nervous behaviour, his inability to provide a clear reason for his travel, and his inconsistent statements. The court held that the search was lawful and, therefore, the evidence obtained was not improperly obtained. Consequently, the evidence should not be excluded. The court also considered the Bunning v Cross discretion and found that the public interest in convicting the applicant outweighed the public interest in excluding the evidence.

The application was dismissed, and the evidence obtained from the search was admitted.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

It is necessary to determine whether or not the search was unlawful and, if it was unlawful, to determine whether, notwithstanding that unlawfulness, the evidence ought still be admitted in the exercise of my discretion.Background Senior Constables D and L, police officers with the Far Northern District Tactical Crime Squad, were conducting patrols in an unmarked police car in Cairns at about 1.25 am on Sunday 13 September 2015. As they drove southbound on Mulgrave Road towards McCoombe Street they observed a white Toyota Corolla motor vehicle drive out of a nearby side street onto Mulgrave Road, heading inbound. The vehicle then turned right off Mulgrave Road in the vicinity of Lyons Street. The police decided to intercept the vehicle for a licence check and breath testing of the driver. They followed the vehicle to Hartley Street, intercepting it as it travelled inbound along Hartley Street, just short of the intersection with Aumuller Street. The police checked the vehicle’s registration on their mobile computer system and ascertained the vehicle was a hire car. The police approached the vehicle, observing that its sole occupant, Mr Watson, was in the driver’s seat. He did not have his driver’s licence but provided his correct name and date of birth which were checked to the satisfaction of the police. He was then subjected to a breath test which returned a negative result. During this activity Senior Constable D had been speaking with Mr Watson, who remained seated in the driver’s seat. He asked Mr Watson where he was travelling from and why he was travelling where he had been intercepted, an area which is a mix of residential and industrial buildings. Mr Watson said he was travelling from his address, but the police ascertained that Mr Watson’s address was in Aumuller Street and he had been intercepted travelling towards, not from, Aumuller Street. He initially told police he was driving towards a friend’s house, then indicated he was looking for his girlfriend whom he named, then he stated that he was going to his girlfriend’s house but, as the conversation progressed further, he was unable to provide police with the address he was going to or an area that he was travelling to. Senior Constable D asked Mr Watson who had hired the vehicle and he nominated the hirer as his friend’s girlfriend, Tilly. He was either unable or unwilling to provide Tilly’s surname when asked for more detail about who had hired the vehicle. Also during this phase Mr Watson appeared nervous in that he continued to look straight ahead, avoiding eye contact. This aspect of his behaviour continued even after he had been informed that the breath test result was negative. The two officers, whose suspicions were aroused by this collection of circumstances, conferred and Officer D then informed Mr Watson he suspected there were drugs inside the vehicle or on Mr Watson’s person. He asked Mr Watson if there was anything illegal like drugs in the vehicle to which Mr Watson said, “Not that I know of.” He then detained Mr Watson, informing him that he was going to search both Mr Watson and the vehicle.

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 Watson [2017] QSC 4
PARTIES:	SHANE PETER WATSON (Applicant) v THE QUEEN (Respondent)
FILE NO/S:	SC No 146 of 2016
DIVISION:	Trial
PROCEEDING:	Section 590AA Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	1 February 2017
DELIVERED AT:	Cairns
HEARING DATE:	18 & 30 January 2017
JUDGE:	Henry J
ORDER:	Application dismissed.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS – SEARCH AND SEIZURE – where the applicant’s car and person were searched by police – where illegal drugs and other items were located – where police have a power under ss 29 and 31 Police Powers and Responsibilities Act 2000 (Qld) to search persons and vehicles without a warrant if they have a reasonable suspicion that prescribed circumstances exist – where the applicant alleges the police officer did not have reasonable grounds for the suspicion and the search was therefore unlawful – whether the evidence resulting from the search should be excluded on the basis it was improperly obtained CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – where the applicant was charged with possession of unlawful dangerous drugs and a Taser – whether if the evidence in support of the charges had been obtained unlawfully 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) ss 29, 31, 32, 60, sch 6 Bunning v Cross (1978) 141 CLR 54 applied George v Rockett (1990) 170 CLR 104 applied R v Ireland (1970) 126 CLR 321 applied
COUNSEL:	P Feeney for the applicant E Coker for the respondent
SOLICITORS:	Wettenhall Silva for the applicant Director of Public Prosecutions (Qld) for the respondent