The Queen v Kairouz

[2017] QSC 270

SUPREME COURT OF QUEENSLAND

CITATION:

The Queen v Kairouz [2017] QSC 270

PARTIES:

THE QUEEN

(Respondent)

v

JON PIERRE KAIROUZ
(Applicant)

FILE NO/S:

SC No 755 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

21 November 2017

DELIVERED AT:

Brisbane

HEARING DATE:

6 November 2017

JUDGE:

Bowskill J

ORDER:

Application dismissed.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED –

application under s 590AA of the Criminal Code to exclude evidence obtained from a search – where the applicant is charged with possession of the dangerous drugs cocaine and diazepam – where the applicant was stopped by police for the purposes of a random breath test, and then a drivers licence check – where the applicant was asked to get out of his car, while the drivers licence was being checked, and asked questions by police, prior to being searched – whether the applicant was unlawfully detained prior to the search – whether the subsequent search of the applicant was conducted with lawful authority

Criminal Code s 590AA

Police Powers and Responsibilities Act 2000 (Qld) ss 29, 30, 60

Bain v Police (2011) 112 SASR 10; [2011] SASC 228

Lewis v Norman [1982] 2 NSWLR 649
Mbuzi v Commissioner of Queensland Police Service [2015] QSC 30

O’Brien v O’Brien (1991) 15 MVR 6
R v Awang [2004] 2 Qd R 672
R v Bossley [2015] 2 Qd R 102; [2012] QSC 292
R v Fuentes (2012) 230 A Crim R 379; [2012] QSC 288

R v Inwood [1973] 2 All ER 645; [1973] 1 WLR 647

R v Lavery (1978) 19 SASR 515

R v Tracey [1983] 1 Qd R 82
Tasmania v Hall (2013) 238 A Crim R 42; [2013] TASSC 75

COUNSEL:

D Balic for the respondent A Edwards for the applicant

SOLICITORS:

Office of the Director of Public Prosecutions for the respondent

Alibi Criminal Defence for the applicant

Introduction

1. The applicant is charged on indictment with unlawful possession of the dangerous drug cocaine in a quantity exceeding 2.0 grams (count 1) and unlawful possession of the dangerous drug diazepam (count 2). He applies under s 590AA of the Criminal Code for a ruling that the search conducted of him on 30 June 2016, on which occasion the drugs the subject of both counts were found, was unlawful and therefore, in the exercise of the court’s discretion, that the evidence obtained in the search be excluded as evidence in any trial of the charges.

1. The argument as to unlawfulness of the search turns on whether or not, at the point at which the applicant was asked by police to, and did, get out of his car during his interaction with the police on the night of 30 June 2016 (prior to being searched) he was unlawfully detained. The applicant submits that he was unlawfully detained at that point, because the police officer had not then formed a reasonable suspicion for the purposes of…